Kara Risner, Plaintiff, v. LLC (2024)

ORDER

This is an employment discrimination case. Plaintiff's claims arise out of her interactions with Defendant's Kenton, Ohio store manager, Julio Cuesta. (Doc. 1, PgID. 2–9). Plaintiff alleges Defendant is liable for, among other claims, sexual harassment. (Id.).

On Plaintiff's first and only day of work for Defendant, Cuesta went from making lewd and inappropriate comments to exposing his penis. (Id.). Local prosecutors later convicted Cuesta of criminal charges for Public Indecency arising out of this incident. (Id.).

Pending is Defendant's motion for summary judgment. (Doc. 37). Plaintiff filed an opposition (Doc. 56) and Defendant replied (Doc. 63).

Plaintiff filed a counter-motion for partial summary judgment. (Doc. 55). Defendant filed an opposition (Doc. 64) and Plaintiff replied (Doc. 65).

For the reasons set forth below, I deny Defendant's motion and I grant in part and deny in part Plaintiff's motion.

Background

Plaintiff's interactions with Defendant occurred over the course of four days.

Plaintiff's first interaction was her September 30, 2020 interview with Cuesta. The second, and the main source of her claims, occurred during her October 10, 2020 in-person training in the Kenton, Ohio store (the “Kenton store”). Plaintiff's third interaction occurred on October 12, 2020, when Cuesta and Plaintiff exchanged text messages and a phone call. And finally, on October 14, 2020, Plaintiff called Defendant's regional manager and human resources (“HR”) manager and confirmed her resignation.

1. September 30

On September 30, Cuesta interviewed Plaintiff for a part-time job at the Kenton store. (Doc. 37-1 PgID. 403; Doc. 55-1, PgID. 3628).

Plaintiff later testified that, during her interview, she asked Cuesta if he needed her cell phone number. Cuesta responded, saying that Plaintiff must have “wanted” to give him her phone number. (Doc. 45, *sealed* PgID. 1539). He also indicated he could send her “some real interesting texts and pictures.” (Id.).

Plaintiff testified that she “seriously could not believe that somebody was conducting a job interview like that, and I didn't know how to react to it because I was so floored by [Cuesta's] manners. (Id. at PgID. 1539–40). She testified that she “was trying to laugh it off” during the interview. (Id. at PgID. 1539).

Plaintiff testified that Cuesta offered her the job as a part-time retail sales associate during her interview. (Id.).

Defendant uses an online system called “eHire.” (Doc. 55-1, PgID. 3671). Using this system, Cuesta, after interviewing Plaintiff, entered Plaintiff's information in the eHire system. This, as I understand it, sent an electronic request to Cuesta's supervisor, regional manager Brad Sebring, requesting approval of Plaintiff's hire. (Id.). Just one second after Cuesta sent his request, Sebring clicked the button to “approve” hiring Plaintiff.

After the interview, Cuesta sent Plaintiff a letter containing a job offer. (Doc. 55-1, PgID. 3629). The letter indicated that Sebring would contact Plaintiff with more details. (Id.; Doc. 37-1 PgID. 403).

Sebring spoke to Plaintiff on the phone and advised her of her pay rate. (Doc. 37-3, PgID. 573).

Plaintiff later testified that, at the time she first spoke to Sebring, she did not realize he was the regional manager and Cuesta's supervisor. (Doc. 37-3, PgID. 547; Doc. 37-1, PgID. 403). Rather, at that time, Plaintiff thought Sebring was “the guy that I gave my W-2s to.” (Doc. 37-3, PgID. 548).

2. October 10

On Saturday, October 10, Plaintiff attended a training day at the Kenton store. (Doc. 37-1, PgID. 404); Doc. 55-1, PgID. 3629–30).

She testified that Cuesta had previously instructed her to wear a gray shirt on her first day, which she did. (Doc. 45-1, PgID. 1540). Once she arrived, however, Cuesta informed Plaintiff that she needed to wear a red shirt instead. (Id. at PgID. 1540–41).

Plaintiff drove to her father's house and obtained a red shirt. (Id. at PgID. 1541). Cuesta instructed Plaintiff to FaceTime him so he could ensure her red shirt was appropriate. (Id.). She did so, and Cuesta stated, “Oh, yeah, that looks really good.” (Id.). Plaintiff understood this comment to regard her breasts because of the tone Cuesta used. (Id.). Using what she later described as a “pissy tone” in response, Plaintiff disconnected the FaceTime call and returned to the Kenton store. (Id. at PgID. 1541–42).

Defendant conducted part of Plaintiff's training online and part in person. Defendant conducted the online portion with a computer terminal in the Kenton store. (Id.; Id.). The online training, known as “Foundations” training, contained seven online modules. (Doc. 55-1, PgID. 3630; Doc. 37-2, PgID. 454). Plaintiff completed all the online training modules. (Doc. 37-3, PgID. 570–80). As further discussed below, the parties dispute whether the Foundations training constituted the entirety of Defendant's anti-harassment training.

The in-person portion of Defendant's training involved Plaintiff accompanying and shadowing Cuesta in the Kenton store. (Doc. 55-1, PgID. 3630).

During this portion of the training, while walking down an aisle together, Cuesta told Plaintiff about his truck's vanity license plate, which was, “2 inch life.” (Doc. 45-1, PgID. 1547–48). This, evidently, was a reference to his penis.

Later, when in the parking lot, Cuesta told Plaintiff he would “prove” to her that “[his penis] was not two inches.” (Id. at PgID. 1548–50). Plaintiff told Cuesta “no” and called him a “punk ass,” which she later explained means, “immature [and/or] young.” (Id.).

Cuesta did not take no for an answer. He told Plaintiff that she “couldn't handle it.” (Id. at PgID. 1549–50). She responded, “I'm 50 years old. You don't want to handle me.” (Id. at PgID. 1550).

She later testified that, at the time this exchange occurred, she did not believe that Cuesta was serious about exposing his penis in the AutoZone parking lot. (Id. at PgID. 1456). She returned to the inside of the store and tried to laugh it off. She later explained her reasons for laughing it off:

Unfortunately for me, when I'm in an uncomfortable situation, that's kind of how I deal with stress is I try to laugh things off, try to make it not so uncomfortable. Him joking about that and me telling him, no I don't need to hear this, I don't—I'm not interested, I think—I mean, to me, I wasn't laughing and joking then, and I was telling him that I was not interested. I did tell him that.

(Id. at PgID. 1456). She also explained:

He was my boss. I didn't know what to do. I was thinking this is where I just got hired. He just hired me. I – I didn't really know what to do except to try to blow it off and make—and try to make him stop by just trying to get off the subject of it.

(Id.).

Back inside the store, Plaintiff completed the Foundations computer training modules ahead of schedule. (Doc. 55-1, PgID. 3631). Cuesta told Plaintiff that, before she could go home, they needed to talk about her first workday. (Doc. 45, PgID. 1452–53). He told her to meet him at a restaurant called Salsa's for lunch where they could talk. (Id.). Though Defendant disputes whether the Salsa's lunch meeting was part of Plaintiff's workday, Plaintiff insists that it was.

Plaintiff asked Cuesta if she was required to go to Salsa's. (Id. at PgID. 1452). Cuesta told her “yes.” (Id. at PgID. 1453). Plaintiff later testified, “[Cuesta] told me that [the lunch] was work-related and that I should—that I needed to go.” (Id.). She asked Cuesta, “Am I getting paid for this, and he says, no, but just meet me out at Salsa's.” (Id.). He also told Plaintiff that “the business was going to pay for the lunch.” (Id. at PgID. 1455). Plaintiff testified that, once at Salsa's, Cuesta told her that he had not taken her off the clock yet but would do so after he returned to the Kenton store. (Id. at PgID. 1455).

Rather than ordering lunch at Salsa's, Cuesta ordered a beer. (Id.). Plaintiff ordered a beer, too, but only after Cuesta did so. (Id.). Cuesta again returned to the topic of his “two-inch life.” (Id. at PgID. 1489). Plaintiff attempted to change the topic. (Id.).

After finishing their drinks, Plaintiff and Cuesta exited Salsa's and walked to the parking lot. (Id.). Plaintiff walked towards her car and unlocked it. (Id. at PgID. 1490).

Rather than walk to his own car, Cuesta walked to the passenger side of Plaintiff's car. He opened the door and entered her vehicle without asking for permission. (Id. at PgID. 1486). Now seated in Plaintiff's passenger seat, Cuesta told Plaintiff he needed to talk to her about something related to work. (Doc. 45-1, PgID. 1490, 1568). Plaintiff entered the driver's side of her car. (Id. at PgID. 1491).

Cuesta again brought up the topic of his penis and his “two-inch life.” (Id. at PgID. 1489). Then, Cuesta exposed his genitals. (Id. at PgID. 1491).

Plaintiff testified that she panicked. (Id.). She turned her head away from Cuesta. (Id. at PgID. 1483–84). She told Cuesta she did not want to see his penis. She told him “no” several times. (Id. at PgID. 1564). She also told Cuesta to get out of her car numerous times. (Id. at PgID. 1576). He did not.

Undeterred, Cuesta told Plaintiff he wanted her to look at his penis so she could see he did not have a “two-inch life.” (Doc. 45-2, PgID. 1699). She again told him no.

Then, Cuesta took hold of the back of Plaintiff's head and forcibly turned it to look at his penis. (Id. at PgID. 1483–84). Plaintiff jerked her head away and told Cuesta to get out of her car. (Id. at PgID. 1483, 1699). Cuesta did not.

Instead, he told her, “to touch it so [she] knew [it's] real.” (Doc. 45-2, PgID. 1699). Plaintiff again told Cuesta, “no,” and told him to get out of her car. (Id.).

Cuesta eventually covered himself and told her, “It's all good.” (Id.). Then, he asked her, “So we ok? You going to tell anyone about this?” (Id.). Plaintiff told him “Yep we are good.” She again told him to leave her car. (Id.).

Cuesta exited Plaintiff's car and then stood right next to the vehicle so that she could see his torso. (Id.). Cuesta stretched his arms and “[p]ush[ed] his crotch towards [Plaintiff].” Plaintiff told him: “Jesus Christ shut the door before I run over your dumb ass.” (Id.).

Cuesta did not close the door immediately.

Instead, he leaned into the car and said, “See you Monday at work.” (Id.). He then shut the passenger side door, got into his own vehicle, and left. (Id.). Plaintiff had previously understood that she was scheduled to work next on Thursday October 15—not Monday October 12. (Doc. 55-2, PgID. 3702).

Plaintiff stayed in her vehicle “to collect herself on what the hell just happened,” before leaving the parking lot.¹ (Doc. 45-2, PgID. 1700).

For the remainder of the weekend, Plaintiff spent her time at home with the blinds closed. (Doc. 55-2, PgID. 3702). She was fearful and crying, knowing Cuesta had access to her home address and phone number. (Id.). She was concerned and anticipating returning to the Kenton store where she would work alongside Cuesta as early as Monday October 12. (Id.).

3. October 12

On Monday, October 12 at 9:49 am, Cuesta sent Plaintiff a text message asking her if she wanted to come into the Kenton store that day. (Doc. 45-8, PgID. 1753). Later that afternoon, Plaintiff wrote back: “Hey I can't come in tonight! You seriously caught me off guard on Saturday! I'm still trying to process!” (Id.).

Cuesta responded with multiple text messages. He wrote:

Call me

I need u to come in please

I'm going to go ahead and find a new job and submit my two weeks

Please just let me find a new job first

I'm submitting my two weeks [sic] notice to my boss today

I just spoke to my boss

I'm stepping down and leaving company. I will only contact u for actual work[-] related topics and start looking for a new job after I finish my two weeks

(Id.).

That same day, Plaintiff contacted authorities and reported the October 10 incident. (Id.; and see Doc. 55-2, PgID. 3702). Plaintiff called Cuesta and allowed a police officer to record the call, which was later transcribed. (See Doc. 37-4, PgID. 603–07).

In the call, Cuesta told Plaintiff that he needed her to work that day. (Id. at PgID. 603). Plaintiff told him that she could not.

She explained, “I know that, like, you know, we've been joking around and everything but I just wasn't expecting that, and it's made me uncomfortable, and I—I can't. I—I—I can't.” (Id.). When Cuesta asked her whether she was quitting altogether or just could not come in that day, she told him “I'll let you know tomorrow for sure. ․ I just need some time to just process this whole thing.” (Id. at 603–04). Cuesta then said, “I'm—I'm sorry. I just—I just joke around, and I—I'm sorry I took it too far.” (Id. at PgID. 604).

4. October 14

On Wednesday October 14, Plaintiff called Defendant's regional manager, Brad Sebring. (Id.). Unbeknownst to Sebring at that time, Plaintiff allowed a police officer to record the call, which was later transcribed. (Doc. 37-2, PgID. 506). HR manager Michelle Ujah happened to be present with Sebring at the time Plaintiff called him. (Doc. 55-2, PgID. 3702).

At the beginning of the call, Sebring asked Plaintiff if he had heard correctly that Plaintiff had resigned. (Doc. 37-2, PgID. 507). Plaintiff confirmed, “That is true. Yes; I—I did quit.” (Id.).

When Sebring asked Plaintiff if she could tell him why she quit, she stated, “Uhm, I was, uhm, -- I was just not feeling comfortable working there. Uhm, I have some issues with the store manager.” (Id. at PgID. 508).

Plaintiff told Sebring, and Ujah, who joined the call midway through, about the October 10 incident in detail. (Id. at PgID. 509–10).

Sebring stated, “Oh God” as Plaintiff described the incident. (Id. at PgID. 512–13). He also said, “And I am so sorry, Kara. I did not know that it was this big, to this extent.” (Id. at PgID. 516).

Ujah stated, “I'm so sorry to hear about this.” (Id. at PgID. 515).

Ujah said:

So first of all, this is not how AutoZone conducts business, and I am extremely sorry that this is your introduction to our organization. This is totally inappropriate, uh, you know, and this will be dealt with. I assure you of that.

Uhm, I'm assuming that you're done working for AutoZone. Is there anything that we can do? I will tell you I am livid by what I'm hearing. And I'm sure that you—I'm not sure if you shared this with your family--- are completely shaken up. And you know, I apologize. And as an HR manager and as a representative of this company, I will assure you that this is not acceptable, and that it will be handled. Uhm, but my most concern right now is you. And I hate that this was your introduction to our company.

(Id. at PgID. 518).

Ujah told Plaintiff that Cuesta had already given notice of his resignation. She then explained the impact of Cuesta's resignation on Plaintiff's report:

Otherwise, you know, if he's not leaving, this will be dealt with. If he's gone, then it becomes—it becomes a public—you know, a personal matter between you and him as far as the police reporting. It's AutoZone's problem if he stays employed, so I want to follow up on that immediately.

You know, I'll just give you time to think about what you want to do, because I'm not going to put you on the spot and try to talk you into, you know, staying with us. But if you do decide to, if you think about it a week or two and you want to call Brad back and you want to—you still want to explore being a part-time employee for AutoZone, I'd love to give you the opportunity or give us the opportunity to show you this is not what we're about. This is totally, uhm, unacceptable.

(Id. at PgID. 520–21). Ujah then continued:

There's nothing for you to say. I mean, first of all, I really am grateful that you called and shared this with us, because sometimes, you know, things happen and people leave, and we don't know, you know, what—what happened. And so, you know, it's very brave of you that you even take the time to break this down for us. So we really appreciate it. And I'm sure it was very difficult for you as well.

Now if we – if this person for some reason continues and decides not to hold up his, uhm, his separation from the company, we do do a very detailed investigation in which we would be talking—we would like to take a statement from you. I know you're kind of talking to me and I'm jotting stuff down, but it's very official, the actual statement. I'm not sure how you feel about that.

(Id. at PgID. 521–22).

Plaintiff responded, “I mean, if he stays and that's your policy, I will—I mean, I'll help out, or I will—I will give you my statement. I don't have an issue with that.” (Id. at PgID. 522). Ujah and Sebring took down Plaintiff's phone number. (Id. at PgID. 524).

Ujah then stated,

I just wanted to—it's super important to me. My customers are the employees. And while you were just a Zoner for one day, it really bothers me that this was your experience. And it's super important to me that you're able to tell your story in an official format. I know we're talking, but an official format that has to be documented on paper and, you know, share it with our upper management. So it's super important to me for you to be able to tell your story, uhm, and have it documented.

So again, no pressure, but I think it's super important for you to have that opportunity to do that. Save my phone number. We will be flexible. We'll meet with you. If you want me to come, I can. However you want to do it. But if you—you know, I don't want to do anything to make you feel uncomfortable. But Brad can meet you anywhere, and I will be remote on a computer. If you'd like me to get in my car and drive, I'll do that too.”

(Id. at PgID. 526–27).

Soon after, the call ended.

Ujah testified about the action she took immediately after the call:

And so when we got off the phone, I looked at [Sebring], I said, “Anything like this ever happened before?”

And that is when Brad, you know, said [․]—I believe he said, “Kim Sherwood just told me that Amy Ray mentioned that [Cuesta] had sent her a text message awhile back. Kim Sherwood mentioned that Amy Ray told her a while back that [Cuesta] had sent a text message one day she called off, wasn't feeling good, and he said, ‘Do you want me to give you a back rub?’ ”

[Sebring had] said, “But that's all I know about it. And Amy cussed [Cuesta] out, went off. That's all I know.”

(Doc. 37-2, PgID. 440–41).

Sebring and Ujah drove to the Kenton store directly.

Ray and Sherwood also worked at the Kenton store. Ray worked as a commercial driver for the store. (Doc. 56-1, PgID. 3637). Sherwood was the assistant store manager. (Doc. 55-3, PgID. 3713).

Ujah testified:

And we hightailed it over to Store 0785, Julio's store. I walk in the door. Julio's [․],, you know, he's acting like nothing's going on. Obviously[,] I just got this phone call. Something is going on.

So when Brad told me [about Amy Ray], I thought it was very important that I speak with Amy Ray first. So I sat Amy Ray down, took her statement of what—about the text message. She couldn't produce the text message, because I wanted to see it.

I don't believe in sexual harassment. I don't believe in a manager having power over people and trying to throw their power around to get sexual favors. So, I mean, my first thought is I want everything that we have that proves that this guy is this person. So I asked for the text messages. For some reason, Amy Ray said her boyfriend accidentally deleted them.

So, finally, I get done with her statement. And I go sit Julio down. He does not want to talk to me. He does not want to give me a statement. I convince him to give me a statement. I said, “Julio, there's some serious allegations about you. You need to be on record giving your statement․

So I sat down, took his statement. I don't know if before or after, during the statement, he said, “I already put in my two weeks’ notice.”

And at that time I said, “Did you put it in writing?”

He said, “Yes.”

I said, “Have you given it to Brad [Sebring]?”

He had not. He said he had it. He went, grabbed it, handed it to me. After we conducted the investigation, he basically was like, “I'm done,” you know. He didn't want to continue employment. He wanted to be done today. He wanted that day to be his last day.

And at that time, I said, “If that's the case, I will take your written resignation now.”

So he wrote me another written resignation for that day. And at that time I accepted his resignation effective immediately, and I wanted to, you know, separate this person from the company right at that time. So that's how that went.

(Id. at PgID. 442–43). Ujah explained that, by obtaining Cuesta's immediate resignation, she was not required to undertake a lengthier termination process. (Id. at PgID. 448).

5. Post-October 14 Events

On October 19, Plaintiff went to the Hardin County Sheriff's office with both a victim's advocate and a police detective, whom she had already contacted, and provided a narrative report of the October 10 incident. (Doc. 45-3, PgID. 1701–02).

Police then conducted several interviews with Sherwood, Ray, and another employee. (Id.).

On October 2, 2021, Plaintiff filed a charge of discrimination with the EEOC and the Ohio Civil Rights Commission (“OCRC”). (Doc. 55-2, PgID. 3706). The OCRC found reasonable cause to believe that Defendant discriminated against Plaintiff due to her sex. (Id. at PgID. 3710–11).

On February 2, 2022, Cuesta pleaded guilty to a charge of Public Indecency arising out of the October 10 incident. (Doc. 55-6, PgID. 3727).

Legal Standard

Established law provides that summary judgment is appropriate where the evidence presented in the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If satisfied, then the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). I draw all justifiable inferences from the evidence presented in the record in the light most favorable to the non-moving party. Woythal v. Tex–Tenn Corp., 112 F.3d 243, 245 (6th Cir. 1997).

Discussion

Defendant moves for summary judgment on all of Plaintiff's claims, which are: (1) hostile work environment under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and O.R.C. §§ 4112 et seq. for sexual harassment;² (2) wrongful termination by way of constructive discharge under 42 U.S.C. §§ 200e, et seq. and O.R.C. §§ 4.112 et seq.; (3) an Ohio common law claim for sexual harassment under the case Kerans v. Porter Paint Co., 61 Ohio St. 3d 486 (1991) (a “Kerans claim”); and (4) negligent retention.

Plaintiff counter-moves for summary judgment on all claims except for her negligent retention claim.³

I discuss each claim in turn.

1. Federal and State Law Hostile Work Environment Claims

As to Plaintiff's sexual harassment/hostile work environment claims, I grant Plaintiff's motion and deny Defendant's motion.⁴ (Doc. 37-1, PgID. 411; Doc. 55-1, PgID. 3665).

A prima facie Title VII sexually hostile work environment claim requires that a plaintiff demonstrate five elements: “(1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment created a hostile work environment; and that (5) the employer is vicariously liable.”⁵ Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005).

Before I reach the merits of the fourth and fifth elements, which are the main disputed elements, I briefly address the second element—unwelcome harassment.

a. Unwelcome Harassment

I reject Defendant's implications that Cuesta's conduct was anything but unwelcome. Simply put, there is no evidence in the record, whatsoever, that Plaintiff encouraged, welcomed, or invited Cuesta's appalling behavior. This is the only inference a rational jury could draw on these facts.

Within a matter of just a few hours, Cuesta went from making inappropriate and unprofessional comments to serious—indeed criminal-- sexual misconduct. There is no question that Cuesta exposed his genitals to Plaintiff in the Salsa's parking lot and grabbed and turned Plaintiff's head to look at his penis. Cuesta acknowledged that his conduct was unwelcome when he apologized to Plaintiff in the phone call on October 14. He also resigned from Defendant's company—an acknowledgement that he erred.

Defendant's own HR manager, Ujah, acknowledged that Cuesta's behavior was unwelcome. She apologized to Plaintiff and expressed outrage at Cuesta's actions, as outlined in the Background section of this Order. (See Doc. 37-2, PgID. 517; 521). She also testified in her deposition that, if she were in Plaintiff's position, she would not have returned to work for Defendant. (Doc. 39-1, PgID. 1206 (“If that happened to me, what she alleged, maybe I would leave employment. I'm sure I would. [․] I don't think there's anything disputable there.”)).

In short, because there is no basis in the record to find that Cuesta's actions were anything but “unwelcome,” Plaintiff satisfies the second element of her sexual harassment claim as a matter of law.⁶

b. Hostile Work Environment

Plaintiff argues she meets the fourth element for a sexual harassment claim because Cuesta's behavior from the onset constituted a hostile work environment. (Doc. 55-1, PgID. 3691). It began even before she first entered the Kenton store (during the initial phone call, when he suggested sending her “interesting” pictures) and accelerated from there. I agree and I find that no reasonable jury could find otherwise.

“In determining whether the alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment under the Harris standard, it is well-established that the court must consider the totality of circumstances.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)).

Whether the conduct is “severe and pervasive” enough to establish a hostile work environment “is not, and by its nature cannot be, a mathematically precise test.” Harris, supra, 510 U.S. at 22. Instead, it must be decided “only by looking at all of the circumstances.” Id. I apply both an objective and subjective component in my evaluation:

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.

Id. at 21–22.

Courts recognize that, “[t]he more severe the incidents, the less pervasive and frequent they need to be to create a hostile work environment.” Neal v. Shelby Cnty. Gov't Cmty. Servs. Agency, 815 F. Supp. 2d 999, 1005 (W.D. Tenn. 2011) (citing Rabidue v. Osceola Ref. Co., 805 F.2d 611, 620 (6th Cir.1986)). Indeed, the Sixth Circuit has held, in some circumstances, “one incident can satisfy a claim.” Vance v. Spencer Cnty. Public Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000).

Here, to be sure, the interactions between Cuesta and Plaintiff were not long-term. Instead, they occurred over a few hours on a single day.

Nonetheless, every interaction of record which, presumably, includes all the interactions between Plaintiff and Cuesta, were severe.

What matters is the frequent—nay, constant and unrelenting—nature of the interactions.

Plaintiff wanted a job. In such circumstances, it is understandable that one might tolerate, at least for a while, offensive sex-based behavior. Someone in her situation does not want to offend the offender who hired her.

There was no reasonable basis for Defendant to argue, or for me to find, that Plaintiff's response encouraged Cuesta's ultimate indignity. To that point, she may have been submissive. But that does not mean that she had been encouraging or actively joined in Cuesta's offensive conduct. Instead, she put on a verbal mask, deliberately concealing her internal response to his noxious conduct.

When incivility becomes criminal, her day-long endurance of Cuesta's crude and presumptive behavior understandably vanished. No one, regardless of gender, experience, or age, would have felt any differently than Plaintiff about Cuesta's sexual assault.

How else to characterize the “environment” other than hostile or unendurable?

Simply put: as unusual as the circumstances Plaintiff unexpectedly encountered, they pervaded the entire experience with AutoZone. She understandably quit; never intending to return.

Her delay in reporting what happened is also understandable. Her dominant sense was fear and apprehension: What would Cuesta do next?

That she took a few days to figure out what she would do is also entirely understandable. In the meantime, during the weekend, she isolated herself, barricading herself against any further attempt by Cuesta to intrude into her life by pulling down her shades, locking her door, and not answering the phone. While the ineffectuality of these measures seems apparent, they show the subjective degree of irrationality and fear that Cuesta's objectively abhorrent actions caused.

As I have already discussed, within a few hours of one day, Cuesta's behavior escalated from inappropriate to criminal conduct. Namely, refusing to leave her vehicle when asked, and then grabbing her head to turn it and look at his exposed penis. Plaintiff understood that she was on Defendant's clock at this time; Cuesta told her he would close out her time card after he returned to the Kenton store and he told her that the company was paying for the Salsa's bill.

This, under the totality of the circumstances, was subjectively and objectively severe and pervasive. Accordingly, I grant Plaintiff summary judgment as to liability only on the hostile work environment element of her claim.

c. Vicarious Liability: Cuesta was Plaintiff's Supervisor

When evaluating the fifth element of a sexual harassment claim—vicarious liability—I must first inquire whether Cuesta was Plaintiff's supervisor or merely her co-worker. I conclude that the evidence more than suffices to enable the jury to indisputably find that Cuesta was Plaintiff's supervisor.

Under Title VII, “[i]n cases in which the harasser is a ‘supervisor,’ ․ different rules apply.” Vance v. Ball State Univ., 570 U.S. 421, 424 (2013); and see, EEOC v AutoZone Inc., 692 F. App'x 280, 282–83 (6th Cir. 2017) (“AutoZone”). When a plaintiff demonstrates that the harasser is her supervisor, then the employer is vicariously liable.⁷ Id.

Congress did not define or even use the term “supervisor” when enacting Title VII. Vance, supra, 570 U.S. at 434, 436. The Supreme Court instructs that an “employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance, supra, 570 U.S. at 424 (emphasis added).

Tangible employment actions “are those that ‘effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” AutoZone, supra, 692 F. App'x at 283 (quoting Vance, supra, 570 U.S. at 431).

The Supreme Court further instructs that, “supervisor status will generally be capable of resolution at summary judgment.” Id. at 441.

Defendant argues that, as a matter of law, a jury could not plausibly find that Cuesta was Plaintiff's supervisor. (Doc. 37-1 PgID. 412–13). I emphatically disagree.

Defendant relies heavily on the case EEOC v. AutoZone, supra, 692 F. App'x at 283. There, the Sixth Circuit, in an unpublished decision, found that the plaintiff could not establish that her harasser (who, like Cuesta here, was an AutoZone “store manager”) was a “supervisor” who took a “tangible employment action” against her. Id. at 281.

Key facts that persuaded the Court in AutoZone that the store manager was not a supervisor are different here.

AutoZone involved Defendant's store in Cardova, Tennessee. The Cardova store manager subjected the plaintiff (and other female employees) to lewd and inappropriate behavior. After approximately six months of the store manager's ongoing and escalating misbehavior, one of the employees reported him to the regional manager. Id. at 282–83. In response to this report, AutoZone transferred the Cardova store manager to a different location and later, fired him. Id. at 282.

The plaintiff sued AutoZone, alleging that the Cardova store manager was her supervisor under a hostile work environment harassment claim. The Sixth Circuit disagreed and decided that the store manager was merely the plaintiff's co-worker. Id.

Key to the Sixth Circuit's decision was the fact that the Cardova store manager could not take a tangible employment action involving the plaintiff.⁸ Id. at 283–84. The Cardova store manager, it found, “could hire new hourly employees” but did not hire the plaintiff. Id. at 283. The record clearly showed that the plaintiff already worked at the Cardova store before the store manager came to work there.

The fact that the Cardova store manager did not hire the plaintiff meant, the Court explained, that she was not “under [the store manager's] control.” Id. at 284. The Court stated that, “[i]t makes no difference that [the store manager] could hire other hourly employees. [The store manager] could not and did not hire the employees he harassed, and that's what matters under Vance.” Id. at 284.

The Court went further, stating, “[w]ere there record evidence that [the store manager] had the ability to effect tangible employment decisions against the employees he harassed, the appeal would come out differently.” Id. at 284.

Plaintiff here presents the situation the way the court in AutoZone anticipated.

Cuesta took the only employment action under AutoZone that mattered: he hired the Plaintiff. AutoZone is a classic case that one can distinguish entirely on the facts. Namely, unlike the store manager there, Cuesta here is the one who made the decision to hire the Plaintiff.

The totality of the circumstances here is inapposite of AutoZone: No rational jury could find that Cuesta was anything but Plaintiff's supervisor.

The record here is plain. Cuesta conducted Plaintiff's job interview and offered her the job during her interview. (Doc. 55-1, PgID. 3669). He sent her an offer letter. (Id. at PgID. 3629).

Cuesta's offer was determinative. He gave Plaintiff no indication that he would require someone else's go-ahead.

When Cuesta entered Plaintiff's information in Defendant's e-Hire system, Sebring digitally rubber stamped Cuesta's decision one second later. Sebring's concurrence in hiring plaintiff was just that: concurrence. Sebring did not play any meaningful role in her hire and acted only as a digital rubber-stamp. The temporal proximity of his computer click supports the inference that Sebring's role in hiring Plaintiff was minimal.⁹

Therefore, I have no doubt that the jury could only find that Cuesta was Plaintiff's supervisor. I grant summary judgment to Plaintiff on her sexual harassment claim as to liability only. I leave the damages determination to the jury.

i. Affirmative Defense to Supervisor Liability

Defendant argues that it has established the Ellerth/Faragher affirmative defense to supervisor liability because it (1) exercised reasonable care to prevent and correct the harassing behavior and (2) Plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities. See Vance, supra, 570 U.S. at 424. I discuss each argument in turn.

Defendant's Reasonable Care

Defendant argues that it satisfies the Ellerth/Faragher reasonable care prong for two reasons. First, it argues that it promulgated and enforced an anti-harassment policy that the Sixth Circuit already found satisfactory. (Doc. 37-1, PgID. 414). Second, it argues that it exercised reasonable care because it promptly investigated Plaintiff's claims. I agree with both arguments.

Defendant is correct that in AutoZone, the Court found that “AutoZone had an appropriate anti-harassment policy in place.” AutoZone, supra, 692 F. App'x at 284–85. Indeed, the Court in AutoZone held that Defendant's policy was reasonable in part because it provided for mandatory reporting, where it stated, “Any employees who observe or experience harassment ․ must report it to management, human resources, or a toll-free phone line.” Id. at 285.

Defendant has not described what changes, if any, it has made to its policy since the Sixth Circuit evaluated it and found it satisfactory in 2017. Nor does Plaintiff argue that the policy changed since then. I accordingly defer to the Sixth Circuit's finding that Defendant's 2017 anti-harassment policy is appropriate.¹⁰

Defendant next argues it satisfies the first prong of Ellerth/Faragher because it “promptly investigated Plaintiff's allegations and did not permit Mr. Cuesta to remain employed after it learned of Plaintiff's allegations.” (Doc. 37-1, PgID. 414–15). I agree.

As discussed, Sebring and Ujah travelled to the Kenton store immediately after their phone call with Plaintiff. They interviewed Ray, Sherwood, and then Cuesta. Cuesta resigned then and there. This same-day action and result is unquestionably prompt.

As a comparison, in AutoZone, the Sixth Circuit approved a much longer time (approximately sixteen days) from when the employer first learned of the harassment to its action against the harasser. Id. at 285. Accordingly, here, Defendant's same-day action was, as a matter of law, prompt and reasonable.

Plaintiff, however, argues Defendant had notice of Cuesta's inappropriate behavior well before October 14. She argues that the notice clock started when Ray first complained to Sherwood about Cuesta. (Doc. 56, PgID. 3784–85).

These issues (of whether Defendant was on notice after Ray complained to Sherwood, whether that notice made Cuesta's behavior toward Plaintiff foreseeable, and when that notice occurred) are key issues of material fact that apply to nearly all of Plaintiff's claims and Defendant's affirmative defenses. Because the parties dispute nearly all of the material facts related to these issues, a jury must decide them.

Plaintiff's Reasonableness in Reporting Harassment

Defendant fails to set forth the second Ellerth/Faragher element of its affirmative defense. I find as a matter of law that despite the four-day delay, Plaintiff was reasonable in promptly reporting the harassment.

Defendant argues that Plaintiff was unreasonable in reporting the incident because she did not report the incident “during her employment.” (Doc. 37-1, PgID. 415).

The Sixth Circuit explains, “[w]e have held that an employee unreasonably fails to take advantage of corrective opportunities when she waits two months to report harassment.” AutoZone, supra, 692 F. App'x at 286. Undoubtedly, the situation here is much different from the harassment in AutoZone, which continued for months before the victim reported it.

Plaintiff worked for Defendant for one day, which happened to be a Saturday. By the following Wednesday, she had reported Cuesta's sexual assault and resigned.

Under all of the circumstances, this is not an unreasonable delay. Especially since, as far as Plaintiff understood it, she was not scheduled to work until Thursday, the day after she made her report.

In fact, Ujah testified that AutoZone did not change Plaintiff's employment status from employed to resigned after she resigned. She testified, “we left Ms. Risner employed for quite some time.” (Doc. 39-1, PgID. 1206). Under Defendant's own record system, therefore, Plaintiff remained employed at the time and after she reported the incident.

Aside from the technicality that, from AutoZone's standpoint, she was an employee when she told Ujah and Sebring about the incident, I believe that a rational jury could find only that there was nothing unreasonable, under the unique circumstances of this case, for Plaintiff's four-day wait. It was both understandable and not unreasonable. Plaintiff indisputably suffered an egregious criminal assault.

Indicia of the psychological impact upon Plaintiff are readily apparent from her actions during the remainder of the weekend. She spent the remainder alone, in her home, with her shades drawn, and anxiously anticipating that her assailant may contact her, or even come to her home. Most importantly, and equally anxiously, she evaluated what she could or should do.

Finally, that it took her several days to decide whether to inform law enforcement authorities also entirely understandable and reasonable. Would they believe her highly unusual story about Cuesta's assault? Would they—as defense counsel does—try to discount or dismiss her account of the incident as something she brought upon herself?

Accordingly, I reject Defendant's argument that Plaintiff unreasonably delayed in reporting the harassment.

However, I leave it to a jury to decide whether Plaintiff was reasonable in rejecting corrective measures Defendant offered. Defendant argues that Plaintiff was unreasonable “by failing to return to work at AutoZone even knowing that the harasser, Mr. Cuesta, no longer would be working at AutoZone.” (Id. at PgID. 417). This must be decided by the jury.

The two cases Defendant cites in support of its position are inapposite.

In Collette v. Stein-Mart, Inc., 126 F. App'x 678 (6th Cir. 2005), the plaintiff in that case worked for the defendant employer for over six months before she was harassed by a co-worker at an after-hours party. Id. at 679. The plaintiff immediately reported the harasser's behavior. The defendant employer immediately suspended and terminated the harasser. Id. at 680. Despite this, the plaintiff did not report for work. Id. The defendant employer repeatedly contacted the plaintiff, assured her that the harasser was gone, and asked her to return to work. The plaintiff refused.

The Sixth Circuit found that, once the plaintiff knew the company terminated her harasser, she should have known that it “would take any other complaint seriously.” Id. This was especially true because the plaintiff herself testified about having a good relationship with her employer (including even, the harasser) for the entire six months before the incident. Id. at 686.

In contrast, Plaintiff here did not have a six-month, or even full-day, relationship with Defendant to reassure her that returning to AutoZone would be beneficial or safe. Nor is there evidence in the record that Ujah or Sebring contacted Plaintiff again after their phone call on October 14. The transcript of their phone call indicates they did not intend to do so out of respect for what Plaintiff went through, though, they left the door open for Plaintiff to contact them if she so desired. Thus, Collette is inapplicable.

In Oman v. Advance Auto Parts, Inc., No. 3:02-cv-7581, 2003 WL 22722952 (N.D. Ohio, Oct 28, 2003), which I decided, the plaintiff worked for the defendant company for approximately five months, with ongoing harassment, before reporting the harassment and resigning. Id. at *1. The evidence was “undisputed that the defendant had made plaintiff aware of the recourse that she could take in the event complaints to her supervisors/harassers were not heeded.” Id. at *2.

As I have already discussed, Plaintiff disputes that she received training and/or a copy of the anti-harassment policy. Thus, Oman is inapplicable.¹¹

In my view, a jury could find that Plaintiff's post-October 10 actions were entirely justified, i.e., that the last thing she wanted was to have anything to do with AutoZone. Yet, the jury could find that returning would have been reasonable after she knew Cuesta was out of the picture. This issue goes to mitigation of Plaintiff's damages; not Defendant's liability.

Accordingly, I find that, as a matter of law, Plaintiff was reasonable and prompt in reporting the harassment. A jury must decide whether Plaintiff was reasonable in choosing not to avail herself of Defendant's corrective opportunities.

Since Defendant cannot meet the second element of the Ellerth/Faragher affirmative defense, I deny Defendant summary judgment.

2. Federal and State Law Constructive Discharge Claims

The parties counter-move for summary judgment on Plaintiff's constructive discharge claims. (Doc. 37-1, PgID. 417; Doc. 55-1, PgID. 3689).

“A claim of constructive discharge [ ] has two basic elements. A plaintiff must prove first that [s]he was discriminated against by [her] employer to the point where a reasonable person in h[er] position would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016).

A constructive discharge claim requires the Plaintiff to set forth more than is required to prevail on a hostile work environment claim. The Supreme Court has explained: “to establish ‘constructive discharge,’ the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004).

I have already found, in the workplace harassment section, that Cuesta's quick escalation from inappropriate comments to criminal assault created, as a matter of law, a hostile environment.

This leaves only the second question: whether a reasonable person in Plaintiff's position would have felt compelled to resign.

In this case, to ask the question is to answer it.

Indeed, even Ujah and Sebring, upon learning of the October 10 incident, expressed that Cuesta's behavior towards Plaintiff was unacceptable and inappropriate. (Doc. 37-2 PgID. 513–15). And indeed, Ujah herself acknowledged an understanding that Plaintiff might not want to return to work for the Defendant.

Accordingly, I grant summary judgment in Plaintiff's favor on her constructive discharge claims.

Defendant argues that the Ellerth/Faragher affirmative defense applies to bar Plaintiff's claim as a matter of law. I reject this argument for the reasons I rejected it in the above section related to workplace harassment. However, I find that the jury must decide the issue of whether Plaintiff's decision not to return to work at AutoZone, at least at other AutoZone locations, was reasonable for mitigation purposes.

Accordingly, I grant summary judgment for Plaintiff as to liability only and not as to damages, on her constructive discharge claim.

3. Kerans Claim

Plaintiff's third claim is a Kerans claim. Both Plaintiff and Defendant seek summary judgment on this claim.

This state-law based cause of action originated in Kerans v. Porter Paint Co., supra, 61 Ohio St. 3d 486. The Sixth Circuit has observed that, “in the main, the elements of [a Kerans] claim are identical to those of a Title VII hostile work environment claim.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 278 (6th Cir. 2019). I have already analyzed Plaintiff's hostile work environment claim and granted summary judgment in her favor. That rationale applies equally here.

What differentiates a Kerans claim is that Kerans includes a “past history” element. Id. at 277–78. Yet, “Ohio courts have failed to reach a precise definition of ‘past history.’ ” Id. (quoting McCombs v. Meijer, Inc., 395 F.3d 346, 354 (6th Cir. 2005)). Plaintiff argues that the issue or issues Ray reported to Sherwood involving Cuesta is “past history” as a matter of law.

I disagree. This issue must go to the jury to decide. As I already discussed in the above sections, this decision overlaps with the jury's decision regarding whether Defendant was on notice of Cuesta's harassment after Ray reported her incident to Sherwood.¹²

For these reasons, I deny the counter-motions for summary judgment on the “past history” element of Plaintiff's Kerans claim.

4. Negligent Retention

Plaintiff's next claim is for negligent retention. Defendant moves for summary judgment on this claim. I deny Defendant's motion. A jury must decide this claim.

A plaintiff's negligent retention claim depends on a showing that the criminal conduct perpetrated on the plaintiff was foreseeable to the employer. “The foreseeability of a criminal act depends on the knowledge of the defendant, which must be determined by the totality of the circumstances, and it is only when the totality of the circumstances are ‘somewhat overwhelming’ that the defendant will be held liable.” Evans v. Ohio State Univ., 112 Ohio App. 3d 724, 742 (1996) (citation omitted).

I have already explained that a jury must decide whether the Ray incident put Defendant “on notice” of Cuesta's tendency to engage in harassing behavior that potentially, as in Ray's case, involved physical contact. Similarly here, a jury must also decide whether the Ray incident gave rise to foreseeability of Cuesta's criminal act.

Defendant argues that I should be guided by two decisions in other cases where the court found, as a matter of law, that the perpetrator's criminal acts were unforeseeable to the employer: Fixel v. LSMJ1, LLC, No. 22-cv-1896, 2023 WL 6392780 (N.D. Ohio Oct. 2, 2023) (Gwin, J.), and Jackson v. Saturn of Chapel Hill, Inc., No. 2005 CA 00067, 2005 WL 2420392 (Ohio Ct. App. Sept. 30, 2005). I disagree.

Unlike Fixel, where it was undisputed that the plaintiff knew the employer's policy on how and when to report harassment, here, Plaintiff correctly argues—and understandably so—that she was unaware of whatever Defendant's corrective policy may have been.¹³ Thus, Fixel is not helpful to this case.

Defendant also cites, with less analysis, to Jackson v. Saturn of Chapel Hill, Inc., No. 2005 CA 00067, 2005 WL 2420392 (Sept. 30, 2005). There, the plaintiff, who was sixteen years old, was harassed at work for over a full year before he told anyone. Id. at *4. The employer's policy required him to report harassment “immediately,” which he clearly did not do. Id. at *3. Again, the employee was familiar with the policy, but failed to follow it. Thus, Jackson is inapplicable here where Plaintiff was understandably unaware of Defendant's policy; she left before Defendant could tell her. This is a non-issue in this case. Moreover, the court in Jackson did not conduct a foreseeability analysis, which is Defendant's main argument for summary judgment here. Thus, Jackson is unhelpful to Defendants.

Accordingly, I deny Defendant summary judgment on Plaintiff's negligent retention claim and I leave it to a jury to decide whether Cuesta's actions were foreseeable to Defendant.

Conclusion

I grant Plaintiff summary judgment as to her hostile work environment and constructive discharge claims. The only issue left for the jury on these claims is damages. Defendant may present the issue of whether Plaintiff's failure to return to work negates some or all of her damages.

As to Plaintiff's Kerans claim, I partially grant summary judgment, but I leave the issue of “past history” to the jury to decide.

As to Plaintiff's negligent retention claim, I deny summary judgment as to foreseeability, which, again, is for the jury to decide.

And as to her intentional infliction of emotional distress claim, I grant dismissal. It is, therefore, ordered that:

(1) Defendant's motion for summary judgment (Doc. 37) be, and the same hereby is, denied; and

(2) Plaintiff's motion for summary judgment (Doc. 55) be, and the same hereby is, granted in part and denied in part.

SO ORDERED.

FOOTNOTES

1.   Throughout this Opinion, I refer to the above-described incident, where applicable, as the “October 10 incident.”

2.   Federal Title VII case law “is generally applicable to cases involving alleged violations of [Ohio] R.C. Chapter 4112.” Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St. 3d 169, 175 (2000). Accordingly, I apply the same analysis to both the federal and state sexual harassment and constructive discharge claims.

3.   Plaintiff's Complaint included a claim for intentional infliction of emotional distress. She does not oppose Defendant's motion for summary judgment on that claim and agrees to its dismissal. (Doc. 56, PgID. 3742). I therefore grant summary judgment and dismiss the intentional infliction claim.

4.   Plaintiff seeks summary judgment on all five hostile work environment elements. (Doc. 55-1, PgID. 3666–89). Defendant moves for summary judgment on elements four and five only. (Doc. 37-1, PgID. 417).

5.   The parties do not dispute the first and third elements of Plaintiff's hostile work environment claim. (See, generally, Doc. 55-1, PgID. 3666–89; Doc. 37-1 PgID. 417). Plaintiff, a woman, is a member of a protected class and the conduct at issue occurred because of her sex.

6.   Especially because Defendant's own HR personnel manifested appropriate understanding and concern for Plaintiff, I found some portions of Defense counsel's questions during the deposition troublesome.For example, Defendant's counsel asked Plaintiff about her marital status, whether she was interested in dating anyone around the time she first met Cuesta, whether she had read the book “Fifty Shades of Gray” and whether she “enjoy[ed] it.” (Doc. 45-1 at PgID. 1530). It is unclear what, if anything, counsel accomplished through such questions.Regardless of the merit (or lack thereof) of a plaintiff's legal claims, depositions are and should be treated as court proceedings outside of my presence. Lawyers participating in depositions are obligated to uphold professional decorum and respect as though the federal judge were in the room. As I have often instructed, “Out-of-sight should not mean out-of-mind.” Carr, J. and Smith, C., Depositions and the Court, Tort & Insurance Law Journal, Vol. 32, No. 3, pp. 651 (Spring 1997).Had counsel objected, and, had counsel contacted me telephonically to resolve the dispute during the deposition, I would not have permitted these off-base questions. They are harassing, irrelevant, and disrespectful.

7.   If the harasser is a co-worker and not a supervisor, then employer liability attaches only when the plaintiff demonstrates that “the employer's response to the plaintiff's complaints ‘manifest[ed] indifference or unreasonableness in light of the facts the employer knew or should have known.’ ” Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (citations omitted).If the harasser is a supervisor, then the employer “may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.” Vance, supra, at 424. This is known as the Ellerth/Faragher affirmative defense and I discuss it in the next section of this Order, below. Id. at 444.

8.   The Court also compared the Cardova store manager's duties to those of the regional manager. Id. at 283–84. For example, it found that the regional manager visited the Cardova store location “at least once a week.” Id. In contrast here, Defendant has not set forth how frequently the reginal manager Sebring visited the Kenton store.In AutoZone, the regional manager “actively participated in [the store's] management, scheduled shifts, and interacted with the employees[.]” Id. at 283. The regional manager “did not blindly delegate his responsibilities to [the store manager] or ‘merely sign the paperwork.’ ” Id.When the store manager made suggestions or recommendations to the regional manager in AutoZone, the regional manager, “did not have to consider [the store manager]’s advice at all. [The regional manager] gave [the store manager]’s input, at most, deference to the extent that it had the power to persuade.” Id. at 284.Thus, the Sixth Circuit explained, “this is not one of those cases where ‘the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.’ ” Id. at 283 (citing Vance, supra, 570 U.S. at 447).

9.   Plaintiff also argues that Cuesta was empowered to, and did, set her work schedule. When Cuesta exited Plaintiff's vehicle on October 10, he told her that he would have her work schedule changed so that she would work alone with him on the following Monday. A jury could infer that Cuesta was empowered to make such changes. This is particularly true since Cuesta (not Sherwood) texted Plaintiff on that Monday and asked her to come into work that day. Defendant disagrees with these assertions, and I leave them to the jury to decide.

10.   The parties dispute whether Plaintiff completed the anti-harassment training or had access to a copy of Defendant's full anti-harassment policy. This material fact is in dispute and should be decided by the jury.

11.   Defendant's brief goes on at some length about the Plaintiff's failure to fully avail herself of AutoZone's policy for reporting sexual harassment. (See, e.g., Doc. 37-1, PgID. 417). Not only did Plaintiff not know about the sexual harassment policy, she no doubt believed that her call to Sebring had explained her actions to the company.

12.   I reject Defendants undeveloped arguments that this case is similar to Burt v. Maple Knoll Cmtys, Inc., No. 1:15-cv-225, 2016 WL 3906233 (S.D. Ohio July 19, 2016). There, there was no evidence that the plaintiff's harasser had a past history. Id. at *14. Here, a jury could decide that the Ray incident is enough to satisfy the past history element of Plaintiff's Kerans claim.I also reject Defendant's comparison of this case to Alemany v. Riser Foods Co., No. 1:04-cv-501, 2006 WL 475197 (Feb. 23, 2006). Alemany involved a harasser with two past incidents of harassment for which he was disciplined. Here, Defendant never disciplined Cuesta for sexual harassment in the past. Thus, this case is not comparable to Alemany.

13.   And yet, Plaintiff reported the harassment to Sebring and Ujah, whom Defendant does not dispute were, among others at AutoZone, designated to receive such complaints.

James G. Carr Sr. U.S. District Judge