IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ALFONSO GONZALEZ, : 

 : 

 Plaintiff, : 

 : Case No. 2:11-CV-137 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

HOSTETLER TRUCKING, INC., : 

 : Magistrate Judge Abel 

 Defendant. : 

 : 

OPINION & ORDER 

 This matter is before the Court on the Defendant Hostetler Trucking, Inc.’s (the 

“Company” or “Defendant”) Motion for Summary Judgment against Plaintiff Alfonso Gonzalez 

(“Gonzalez”), pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 26.) For the 

foregoing reasons, Defendant’s Motion is GRANTED in part and DENIED in part. 

I. BACKGROUND 

A. Factual Background 

Defendant Hostetler Trucking is a trucking and farming business, owned by Nelson 

Hostetler. Nelson’s wife, Fern Hostetler, is president of the Company. Defendant also employs 

Jeff Hostetler and Kyle Hostetler, Fern and Nelson’s sons. Fern and Nelson spend the winter 

months, from approximately December 1 to April 1, in Florida, and Jeff Hostetler acts as the onsite supervisor of operations during their absence. (F. Hostetler Aff., Doc. 27-6, ¶ 8; N. Hostetler 

Aff., Doc. 27-5 at 17.) 

Gonzalez, a Hispanic-American of Mexican descent, was employed by Hostetler from on 

or about September 9, 2009 until April 5, 2010. (See F. Hostetler Aff., Doc. 27-6, ¶ 2.) Although 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 1 of 26 PAGEID #: <pageID>
2

Gonzalez did not have a specific job title, see id. at ¶6, he assisted the shop mechanic who 

worked on the Company’s trucks. (N. Hostetler Dep., Doc. 27-5 at 14.) At the time of 

Gonzelez’s hiring, Christopher Mayhorn was, in Gonzalez’s words, Hostetler Trucking’s “head 

mechanic.” (K. Hostetler Dep., Doc. 27-13 at 14.) Gonzalez testified that Mayhorn “got 

[Gonzalez] the job,” and Nelson hired Gonzalez after only a brief exchange, based on Mayhorn’s 

recommendation. (Gonzalez Dep. 27-1 at 41.) Gonzalez further testified that Mayhorn directed 

his activities and trained him to do mechanical repairs on semi-trucks, including changing tires, 

brakes, lights, oil, filters and working on transmissions and alternators. (Gonzalez Dep. 27-1 at 

42-43.) Sometime after Gonzalez was hired, Mayhorn left his position and was replaced with 

John Mercer (“Mercer”), who purportedly performed the same duties with respect to Gonzalez. 

(Gonzalez Dep., Doc. 27-1 at 55-56.)1

 

Gonzalez also asserts that he was supervised by Nelson, Jeff and Kyle Hostetler, and that 

he received directives from one or more of these individuals daily. (Id. at 46-47; F. Hostetler 

Aff., Doc. 27-6, ¶¶ 7, 9.) Defendant also employed Christopher Hanscel (“Hanscel”), a supervisor 

who worked primarily on the farming side of the Company’s operations. (Id. at 56-57; F. 

Hostetler Aff., Doc. 27-6, ¶¶ 3-4.) Although Defendant asserts that Gonzalez had limited contact 

with Hanscel given their respective positions, (see F. Hostetler Aff., Doc. 27-6, ¶¶ 3-4), Gonzalez 

testified at his deposition that he would see Hanscel when Hanscel came to the mechanic’s area 

to pick up tools, or when Hanscel was driving equipment on company property. (Gonzalez Dep., 

Doc. 27-1 at 56-57.) 

Gonzalez testified that, on a daily basis, Mercer and Kyle Hostetler called him names 

including “spic,” “spic bitch,” “wetback nigger,” and “wetback.” (Id. at 64, 68, 72-73, 77-80.) 

 

1

 Hostetler asserts that Nelson Hostetler was actually Gonzalez’s supervisor, but concedes that Gonzalez worked 

with Mercer during his employment. (F. Hostetler Aff., Doc. 27-6, ¶¶ 7, 9.)

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 2 of 26 PAGEID #: <pageID>
3

Among other incidences, Gonzalez testified that Kyle called him a “wetback” 5-6 times per day, 

(id. at 72), and called him a “spic” about 15 times during the course of Gonzalez’s employment, 

and a “spic bitch” once. (Id. at 69.) Gonzalez testified that he asked Kyle and Mercer to stop 

referring to him in that manner “numerous times,” (id. at 72), and recalls specifically telling Kyle 

not to call him a “spic bitch.” (Id. at 69-70.) Gonzalez further testified that he asked Mercer to 

stop by pointing to his nametag and saying, “This is my name right here,” and that Mercer would 

respond by saying, “[Your] name is wetback nigger.” (Id. at 79.) Gonzalez also testified at his 

deposition that this name-calling was done in the presence of other co-workers and supervisors, 

including Jeff Hostetler. (Id. at 70-71, 73, 75, 78-79.) 

Gonzalez also testified that, on approximately March 25, 2010, he had a conversation 

with Nelson Hostetler, during which Nelson Hostetler notified him that Hanscel did not like 

“wetbacks” and “niggers.” (Gonzalez Dep., Doc. 27-1 at 65-67, 106.) Defendant maintains that it 

is extremely unlikely that any conversation between Gonzalez and Nelson Hostetler took place, 

as Nelson lives in Florida from December 1 thru April 1. Hanscel denies ever making such a 

comment to Nelson Hostetler. (Hanscel Dep., Doc 27-15 at 7-8 and 13.) Gonzalez does not 

assert that Hanscel never made such a comment directly to him, and testified at his deposition 

that the two rarely, if ever, spoke during the course of Gonzalez’s employment. (Gonzalez Dep., 

Doc. 27-1 at 65-66.) 

The last day Gonzalez worked at Hostetler was March 30, 2010. (See F. Hostetler Aff., 

Doc. 27-6, ¶ 2.) Gonzalez called in sick via text message on March 31, 2010, April 1, 2010 and 

April 2, 2010. (Id.; Text Msg. Correspondence, Doc. 27-18.) On April 5, 2010, Gonzalez sent 

Nelson Hostetler a text message notifying him that Gonzalez was quitting and would not be 

returning to work. The text message stated: “Hey this is Papas [Gonzalez]. I won’t be coming 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 3 of 26 PAGEID #: <pageID>
4

back because I do not feel safe working around someone you said don’t like Mexicans and 

niggers.” (Gonzalez Dep., Doc. 27-1 at 104; Text Msg. Correspondence, Doc. 27-18.) 

Gonzalez testified he met with an attorney about the alleged discrimination prior to 

quitting his position with the Company. (Gonzalez Dep., Doc. 27-1 at 81.) The attorney sent 

Defendant a letter dated April 5, 2010 outlining the alleged discrimination and making a 

monetary demand. Gonzalez testified that he did not return to work because he “really felt like it 

would be harmful for [him] to still work there” once the Company received the letter, and he 

“felt fear for his life.” (Id.) 

Defendant denies Gonzalez’s allegations of harassment and a hostile work environment. 

In particular, Defendant counters that the Company has a robust anti-harassment policy, and 

offers affidavits and deposition testimony from various employees (and members of the Hostetler 

family), averring that they never witnessed any harassment. (See, e.g. F. Hostetler Aff, Doc. 27-

6, ¶¶ 12-16.) Although Kyle admits that he called Gonzalez a “wetback” occasionally, he insists 

that he did so in a joking manner. Moreover, although Kyle admitted in his deposition that these 

terms were somewhat degrading, he asserted that he did not believe they were offensive to 

Gonzalez because Gonzalez referred to himself as a “wetback” and a “spic,” and never requested 

that Kyle stop calling him those names. (K. Hostetler Dep., Doc. 27-13 at 21, 24, 26, 31.) 

Gonzalez denies calling himself these names. (Gonzalez Dep., Doc. 27-1 at 110.) Defendant also 

argues that Gonzalez admitted in his deposition that he never felt threatened by any of the name 

calling because he could handle himself and simply ignored what they were saying. (Id. at 81.) 

Defendant also highlights that Gonzalez admitted in his deposition that he did not report 

the incidents to either Nelson or Fern Hostetler, (Gonzalez Dep., Doc. 27-1 at 70-74,) despite the 

fact that Gonzalez stated in an affidavit accompanying a subsequent Ohio Civil Rights 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 4 of 26 PAGEID #: <pageID>
5

Commission complaint that he reported these incidents to management. (See OCRC Aff., Doc. 

27-9.) Defendant further seeks to undermine Gonzalez’s credibility by pointing out 

inconsistencies between Gonzalez’s deposition testimony and his interrogatory answers, with 

respect to the specific names Gonzalez alleges he was called, and the alleged frequency of those 

epitaphs. (See Def.’s Mem. in Support, Doc. 27 at 2 n.2, 6 n.6, 7 n.8.) 

B. Procedural History 

 Plaintiff filed this action against Defendant on February 11, 2011, alleging: (1) racial 

harassment, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e), et seq. (“Title 

VII”); (2) national origin harassment, in violation of Title VII; (3) retaliation in violation of Title 

VII; (4) common law negligent retention; and (5) common law negligent supervision. (Doc. 1.) 

On September 1, 2011, Gonzalez amended his complaint to include claims for: (6) national 

origin harassment pursuant to the Ohio Civil Rights Act, O.R.C. § 4112.99 and Ohio common 

law; and (7) retaliation pursuant to the Ohio Civil Rights Act. (Doc. 10.) Defendant denies any 

illegal conduct. 

On April 19, 2012, Defendant moved to dismiss the suit for failure to prosecute. (Doc. 

20.) This Court denied Defendant’s motion in an Order dated October 29, 2012. (Doc. 25.) 

On October 31, 2012, Defendant moved for summary judgment on all claims. (Doc. 26.) 

Plaintiff opposes Defendant’s motion only with respect to the federal and state law harassment 

claims, and the common law negligent retention and supervision claims. (Doc. 30 at 3 n.2.) 

Defendant’s Motion has been fully briefed, and the Court heard Oral Argument from counsel. 

These matters are therefore ripe for review. 

 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 5 of 26 PAGEID #: <pageID>
6

II. STANDARD OF REVIEW 

 Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). 

 A movant for summary judgment meets its initial burden “by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir.1991) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts 

showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to 

“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess 

the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 

230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir. 

1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and 

reasonable inferences must be viewed in the light most favorable to the party opposing the 

motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986)). 

III. LAW AND ANALYSIS 

Plaintiff does not oppose Defendant’s Motion with respect to Gonzalez’s federal and state 

law retaliation claims (Counts 3 and 7 of the Amended Complaint), or Gonzalez’s common law 

national origin harassment claim (contained in Count 6 of the Amended Complaint). (Pl.’s Mem. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 6 of 26 PAGEID #: <pageID>
7

Contra, Doc. 30, 3 n.2.) Summary Judgment is therefore GRANTED as to these claims. The 

Court considers Defendant’s Motion with respect to the remaining claims below. 

A. Hostile Work Environment Claims 

Gonzalez’s harassment claims under Title VII and the Ohio Civil Rights Act (Counts 1, 

2, and 6 of the Amended Complaint) are analyzed under the same framework, and are properly 

viewed as hostile work environment claims. Title VII prohibits discrimination by an employer 

on the basis of a person’s race, color, religion, sex or national origin. 42 U.S.C. § 2000(e), et 

seq. Such “illegal discrimination may be found when a plaintiff establishes that ‘the 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.’” Russell v. University of Toledo, 537 F.3d 596, 608 (6th Cir. 2008) (quoting 

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). 

As the Sixth Circuit has confirmed, “[t]he McDonnell Douglas burden-shifting approach 

also applies to hostile-work-environment claims.” Clay v. UPS, 501 F.3d 695, 706 (6th Cir. 

2007). To establish a prima facie case of a hostile work environment based on racial harassment, 

Gonzalez must show: 

(1) [ ]he is a member of a protected class; (2)[ ]he was subjected to unwelcomed 

racial harassment; (3) the harassment was race based; (4) the harassment 

unreasonably interfered with [his] work performance by creating an environment 

that was intimidating, hostile, or offensive; and (5) employer liability. 

Id. (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)). 

 Here, there is no question that Gonzalez was a member of a protected class, or that the 

conduct alleged – if it took place – would constitute harassment on the basis of race and/or 

national origin. Rather, Defendant takes issue with the fourth prima facie element, and argues 

that the conduct alleged “was not sufficiently severe or pervasive to constitute actionable 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 7 of 26 PAGEID #: <pageID>
8

harassment.” (Def.’s Mem. in Support, Doc. 27, 10.) Defendant also argues that Gonzalez cannot 

satisfy the fifth prima facie element – employer liability – because the Company took reasonable 

steps under the circumstances to prevent harassment by its personnel. (Id. at 14.) 

1. Creation of a Hostile Work Environment 

 As the Sixth Circuit has explained, “[w]hether harassing conduct is sufficiently severe or 

pervasive to establish a hostile work environment is ‘quintessentially a question of fact.’” 

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (quoting Jordan v. City of 

Cleveland, 464 F.3d 584, 597 (6th Cir.2006) (internal quotation marks omitted)). In order “[t]o 

determine whether a work environment is ‘hostile’ or ‘abusive,’ courts look at the totality of the 

circumstances.” Id. (quoting Harris, 510 U.S. at 23). Thus, ‘the 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.” 

Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir. 1999) (quoting Williams v. General 

Motors Corp., 187 F.3d 553 (6th Cir. 1999)). 

In determining whether a hostile work environment exists, a fact-finder evaluates the 

conduct at issue by both an objective and subjective standard. Hawkins, 517 F.3d at 333 (citing 

Harris, 510 U.S. at 21-22). Thus, a plaintiff must establish “both that the harassing behavior was 

‘severe or pervasive’ enough to create an environment that a reasonable person would find 

objectively hostile or abusive, and that he or she subjectively regarded the environment as 

abusive.” Id. (citing Harris, 510 U.S. at 21-22). When considering whether a plaintiff has met 

these standards, “[s]ummary judgment is appropriate only if the evidence is so one-sided that 

there is no genuine issue of material fact as to whether there was a hostile work environment.” 

Id. (citing Abeita v. Transam. Mailings, Inc., 159 F.3d 246, 250 (6th Cir. 1998)). 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 8 of 26 PAGEID #: <pageID>
9

a. Objective Standard: Severe or Pervasive 

To be actionable, it is not enough that the conduct at issue is merely offensive, id. (citing 

Harris, 510 U.S. at 21); “[i]nstead, the workplace must be permeated with ‘discriminatory 

intimidation, ridicule or insult’ sufficiently severe or pervasive to alter the conditions of 

employment.” Id. (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-67 (1986)). As the 

Sixth Circuit has explained, “[t]he determination of whether harassing conduct is sufficiently 

severe or pervasive to establish a hostile work environment is not susceptible to a 

‘mathematically precise test.’” Hawkins, 517 F.3d at 333 (quoting Abeita, 159 F.3d at 251) 

(alteration original). A nonexhaustive list of factors for courts to consider includes “the 

frequency of the 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.” Id. (quoting Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th 

Cir. 2006). 

Plaintiff argues that egregious invectives like “spic,” “wetback,” and “wetback nigger” 

are so severe that even a single usage would be sufficient to create a hostile work environment. 

Defendant counters that, in the Sixth Circuit, as a matter of law, “isolated incidents” of racial 

remarks “will not amount to discriminatory changes in the terms and conditions of employment.” 

Long v. Ford Motor Co., 193 Fed.Appx. 497, 502 (6th Cir. 2006) (holding that episodes of 

harassment through racial remarks involving only two individuals on two discrete instances were 

not pervasive enough to constitute a hostile or abusive working environment). 

Certainly, a reasonable jury could find invectives like “spic,” “wetback,” and “wetback 

nigger,” to be objectively offensive and abusive. See Cordova v. State Farm Ins. Companies, 124 

F.3d 1145, 1149 (9th Cir. 1997) (“Calling someone a “dumb Mexican” is an egregious and 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 9 of 26 PAGEID #: <pageID>
10

bigoted insult, one that constitutes strong evidence of discriminatory animus on the basis of 

national origin.”); Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir. 1997) (“[A] reasonable Puerto 

Rican would find a workplace in which her boss repeatedly called her a ‘dumb spic’ and told her 

that she should stay home, go on welfare, and collect food stamps like the rest of the ‘spics' to be 

hostile.”); E.E.O.C. v. Ceisel Masonry, Inc., 594 F.Supp.2d 1018, 1023 (N.D. Ill. 2009) 

(“Unambiguously racial epithets such as [“weback” and “fucking Mexican”] fall on the more 

severe end of the spectrum ... indeed, it is difficult to imagine epithets more offensive to 

someone of Hispanic descent.”) (quoting Cerros v. Steel Technologies, Inc., 398 F.3d 944, 950-

51 (7th Cir. 2005)). See also Payton v. Receivables Outsourcing, Inc., 840 N.E.2d 236, 241 

(Ohio. App. 2005) (in evaluating a claim under the Ohio Civil Rights Act, noting that “[a] single 

act of sexual harassment may be sufficient to create a hostile work environment if it is of such a 

nature and occurs in such circumstances that it may reasonably be said to characterize the 

atmosphere in which a plaintiff must work”). 

This Court need not decide, however, whether a single use of the epithets above would be 

sufficient to create a hostile work environment, because Plaintiff offers evidence that they were 

used by his co-workers and/or supervisors multiple times a day, on an ongoing basis. The Sixth 

Circuit has repeatedly “acknowledged that [offensive] comments and harassing acts of a 

‘continual’ nature are more likely to be deemed pervasive.” Hawkins, 517 F.3d at 333. See, e.g.,

Abierta, 159 F.3d at 252 (in the context of a hostile work environment claim involving 

allegations of sex-based discriminating, holding that “[a] victim's assertion that the harasser's 

sexual comments were ‘ongoing,’ ‘commonplace,’ and ‘continuing’ was sufficient to survive 

summary judgment on the severe or pervasive test); Jackson v. Quanex Corp., 191 F.3d 647, 662 

(6th Cir. 1999) (“While the Court has noted that ‘simple teasing,’ offhand comments, and 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 10 of 26 PAGEID #: <pageID>
11

isolated incidents’ ordinarily do not amount to discrimination under Title VII, an abundance of 

racial epithets and racially offensive graffiti could hardly qualify as offhand or isolated. Rather, 

such continuous conduct may constitute severe and pervasive harassment.”) (internal citations 

omitted) (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998)); Torres v. County of 

Oakland, 758 F.2d 147, 151 (6th Cir. 1985) (noting that “continuing use of racial or ethnic slurs 

would violate Title VII”); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981) 

(“Unquestionably, a working environment dominated by racial slurs constitutes a violation of 

Title VII.”). 

Here, Gonzalez has presented evidence that he was referred in terms like “spic,” 

“wetback,” and “wetback nigger” almost daily – sometimes multiple times per day – by multiple 

individuals, in the presence of other co-workers and managers. Thus, viewing this evidence in 

the light most favorable to the non-moving party, a reasonable jury could find that the alleged 

discriminatory conduct was indeed pervasive, and that Gonzalez’s working conditions were 

discriminatorily altered as a result. Defendant’s attacks on Gonzalez’s credibility in this regard 

are inapposite: at the summary judgment stage, it is not the role of the trial court to “resolve 

factual disputes by weighing conflicting evidence.” Kraus, 915 F.2d at 230. The Court therefore 

finds disputed questions of material fact as to whether the conditions of Plaintiff’s employment 

were objectively hostile and abusive. 

b. Subjective Regard 

Plaintiff has also offered evidence of that he subjectively regarded the environment as 

abusive. Gonzalez testified at his deposition that he repeatedly asked Mercer and Kyle Hostetler 

to stop using those racial invectives, and found them offensive and hurtful. (Gonzalez Dep., Doc. 

27-1 at 89-90, 111.) Moreover, his text message to Nelson Hostetler on April 5, 2010 indicated 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 11 of 26 PAGEID #: <pageID>
12

that he feared for his safety. (Id. at 81.) Defendant makes much of the fact that Gonzalez never 

reported the alleged harassment to Nelson or Fern Hostetler, and argues that if Gonzalez actually 

felt abused, threatened and/or offended, he would have reported it. While a reasonable jury 

could draw this inference, it could as easily conclude that Gonzalez had good reason not to report 

these incidents: one of the primary perpetrators of the alleged harassment was Fern and Nelson’s 

son, Kyle. See Jackson, 191 F.3d at 659, 663 (employer has affirmative defense to Title VII 

liability only if the plaintiff’s failure to take advantage of corrective opportunities was 

“unreasonable”) (Title VII standards for employer liability “nowhere ... specify that the plaintiff, 

or any other individual, must ‘report’ the offensive conduct ... to the employer.”). In any case, at 

the summary judgment stage, it is not for this Court to weigh the evidence and make credibility 

determinations. Based on the above evidence, the Court finds a dispute of material fact as to 

Gonzalez’s subjective regard for his work environment that must be resolved by a jury. Hawkins, 

517 F.3d at 333 (“Summary judgment is appropriate only if the evidence is so one-sided that 

there is no genuine issue of material fact as to whether there was a hostile work environment.”). 

2. Employer Liability 

If a plaintiff can show that a hostile work environment existed, he or she must then 

establish fifth prima facie element: employer liability. To satisfy this element, a plaintiff must 

prove that his employer “‘tolerated or condoned the situation’ or ‘that the employer knew or 

should have known of the alleged conduct and failed to take prompt remedial action.’” Jackson., 

191 F.3d at 659 (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988)). 

As this Court has stated previously, “[t]he standards for employer liability differ if the 

alleged harasser is a co-worker or a supervisor.” Stayner v. Ohio Dep’t of Rehabilitation, 2011 

WL 3900617, *7 (S.D. Ohio Sept. 6, 2011). When a co-worker is the source of the harassment, 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 12 of 26 PAGEID #: <pageID>
13

an employer is liable ‘if its response manifests indifference or unreasonableness in light of the 

facts the employer knew or should have known.’” Hawkins, 517 F.3d at 338 (citing Blankenship 

v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997)) (explaining that, after the Supreme 

Court’s decisions in Ellerth and Faragher, “an employer may be held liable when its remedial 

response is merely negligent, however well-intentioned,” but applying Blankenship to define 

negligence as an employer response that “manifests indifference or unreasonableness in light of 

the facts”). In contrast, when the hostile work environment is “created by a supervisor with 

immediate (or successively higher) authority over the employee,” the employer is vicariously 

liable. Jackson, 191 F.3d at 659 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 

(1998)). This strict liability is subject to an affirmative defense where the allegedly 

discriminatory conduct at issue does not include an adverse employment action, such as 

discharge, demotion, or undesirable reassignment. Stayner, 2011 WL 3900617 at *7 (citing 

Collette v. Stein–Mart, Inc., 126 Fed. Appx. 678, 682 (6th Cir. 2005)); Jackson, 191 F.3d at 659 

(citing Ellerth, 524 U.S. at 765). 

a. Vicarious Liability For Supervisor Harassment 

i. Whether Mercer and Kyle Hostetler Were Supervisors 

To determine whether the supervisory standard applies, we first consider whether Mercer 

and Kyle Hostetler are properly considered “supervisors.”2

 The Supreme Court’s recent decision 

in Vance v. Ball State University, 133 S.Ct. 2434 (2013), narrowed the definition of “supervisor” 

for the purposes of vicarious liability under Title VII. Specifically, Vance held that “an 

employer may be vicariously liable for an employee's unlawful harassment only when the 

employer has empowered that employee to take tangible employment actions against the victim, 

 

2

 Because Gonzalez does not allege that Hanscel was among those who harassed him – indeed, Gonzalez testified at 

his deposition that he had barely any interaction with Hanscel over the course of his employment, Gonzalez Dep., 

Doc. 27-1 at 51, 56 – we do not consider whether Hanscel was a supervisor for the purposes of vicarious liability. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 13 of 26 PAGEID #: <pageID>
14

i.e., to 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.’” Id. at 2443 (quoting Ellerth, 524 U.S. at 761). Vance considered 

hostile work environment claims brought by a catering assistant, Vance, who alleged that she 

was repeatedly racially harassed by Davis, a specialist in the catering division. Although the 

parties “vigorously dispute[d] the nature and scope of Davis’ duties,” they agreed that Davis “did 

not have the power to hire, fire, demote, promote, transfer, or discipline Vance.” Id. Thus, 

despite “Davis’ job description, which gave her leadership responsibilities, and [] evidence that 

Davis at times led or direct Vance or other employees in the kitchen,” id. at 2449, the Supreme 

Court held that Davis was not a supervisor for the purposes of Title VII as a matter of law, 

“[b]ecause there [wa]s no evidence that [the employer] empowered Davis to take any tangible 

employment actions against Vance.” Id. at 2454. 

Because Vance was decided after the matter sub judice was fully briefed, the parties did 

not address the legal standard for “supervisor” articulated in that case. In particular, Plaintiff’s 

evidence that Mercer and Kyle Hostetler directed Gonzalez’s daily activities is now inapposite – 

under Vance, the relevant question is whether Kyle Hostetler or Mercer were empowered to take 

tangible employment actions against Gonzalez. The record is unclear as to precisely which 

individuals at Hostetler Trucking were empowered to hire, fire, promote or reassign Gonzalez. 

Under Vance, however, “tangible employment actions” also include any action that “effects a 

significant change in employment status.” Thus, if an individual is empowered by an employer 

to make reports, recommendations, or evaluations of an employee that lead directly to a 

significant change in that employee’s employment status, that individual would be a “supervisor” 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 14 of 26 PAGEID #: <pageID>
15

for the purposes of vicarious liability under Title VII. The record contains evidence that Mercer 

was so empowered. 

In particular, Gonzalez testified at his deposition that – though Gonzalez started his 

employment only after filing an application and talking briefly to Nelson Hostetler – Mercer’s 

predecessor, Mayhorn, recommended Gonzalez and “got [Gonzalez] the job.” (Gonzalez Dep., 

Doc. 27-1 at 41.) Moreover, the record contains evidence that it was Mayhorn, and later Mercer, 

who trained Gonzalez, oversaw and reviewed Gonzalez’s work performance, and assigned 

Gonzalez concrete individual tasks associated with the larger repair and maintenance projects 

identified by Nelson at the Company’s morning meetings. Construing this evidence in 

Gonzalez’s favor, a reasonable jury could find that the application and brief exchange associated 

with Gonzalez’s hiring were merely pro forma – particularly given that Nelson was not himself a 

mechanic, and thus had limited ability to evaluate Gonzalez’s qualifications for the position. As 

such, even if hiring, firing, promotion and transfer decisions for Gonzalez’s position ultimately 

rested with Nelson Hostetler, a reasonable jury could conclude that Mayhorn’s judgment was 

dispositive in the decision to hire Gonzalez. Further, in light of the evidence that Mercer replaced 

Mayhorn and held the same position and influence within the Company, a reasonable jury could 

likewise conclude that Mercer’s report, recommendation, or evaluation with respect to Gonzalez 

could similarly effect a significant change in Gonzalez’s employment status. If a jury finds that 

a negative report or recommendation from Mercer had the power to effect a significant change in 

Gonzalez’s employment status (e.g., termination, discharge, demotion or transfer), then Mercer 

would be a “supervisor” for the purposes of vicarious liability. Thus, there remains a question of 

material fact as to whether Mercer was Gonzalez’s “supervisor” for the purposes of Title VII. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 15 of 26 PAGEID #: <pageID>
16

ii. Affirmative Defense 

When allegations of harassment involve a supervisor, the Supreme Court distinguishes 

between supervisor harassment that includes an adverse employment action and supervisor 

harassment that does not. Stayner, 2011 WL 3900617 at *7. If the conduct includes an adverse 

employment action, such as discharge, demotion, or undesirable reassignment, then the employer 

is strictly liable. Id. (citing Collette, 126 Fed. Appx. at 682 (6th Cir. 2005)). In contrast, where, 

as here, there is no tangible employment action,3

 “an employer may raise an affirmative defense 

to liability by proving, by a preponderance of the evidence, that (1) it exercised reasonable care 

to prevent and correct promptly any racially harassing behavior, and (2) the plaintiff employee 

unreasonably failed to take advantage of corrective opportunities provided by the employer.” 

Jackson, 191 F.3d at 659 (citing Ellerth, 524 U.S. at 765). 

If Mercer was a “supervisor” for the purposes of Title VII, Defendant bears the burden of 

proving its affirmative defense. Defendant argues that it satisfied the first prong of the 

affirmative defense because it had an anti-harassment policy in place and Fern and Nelson 

Hostetler were not aware of Mercer’s alleged supervisory harassment. Defendant also argues that 

the second prong is satisfied by Gonzalez’s admission that he never reported the harassment to 

Fern and Nelson Hostetler, and Fern and Nelson’s respective confirmations that no such reports 

were filed. 

Gonzalez, however, has presented evidence that: (1) Nelson Hostetler was in the office 

on a daily basis for the majority of the year; (2) harassment was continuous and ongoing; and (3) 

 

3

 Plaintiff argues that there has been an adverse employment action here, in the form of a constructive discharge. 

The Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), however, forecloses that 

argument in this case. The Suder Court held that, although “a constructive discharge is functionally the same as an 

actual termination in damages-enhancing respects ... when an official act does not underlie the constructive 

discharge, the Ellerth and Faragher analysis ... calls for the extension of the affirmative defense to the employer.” 

Id. at 148. Because Plaintiff’s constructive discharge arguments are not predicated on any official action by the 

Company, Defendant is entitled to avail itself of the Ellerth/Faragher affirmative defense. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 16 of 26 PAGEID #: <pageID>
17

the harassing conduct took place in the presence of multiple employees, including Jeff Hostetler, 

who was undisputedly in charge of on-site operations when his parents were in Florida for the 

winter. A reasonable jury who credits this evidence could conclude that Nelson and Fern 

Hostetler knew or should have known about Mercer’s conduct, did nothing, and declined to 

enforce the Company’s anti-harassment policy. Moreover, should a jury credit Gonzalez’s 

evidence about the hostility of the workplace, the fact that a primary perpetrator of the alleged 

harassment was the owner’s son, and Gonzalez’s fears for his safety following the mailing of the 

April 5, 2010 attorney letter, it could also conclude Plaintiff’s failure to report the discrimination 

earlier was not unreasonable. Notably, “nowhere do the above delineated standards [for 

employer liability] specify that the plaintiff, or any other individual, must ‘report’ the offensive 

conduct ... to the employer.” Jackson, 191 F.3d at 663. Rather, as the Sixth Circuit has made 

clear, the standard is whether the employer “‘knew or should have known’ of the offenses.” Id. 

The Court therefore finds that there is a dispute of material fact as to whether Defendant has met 

its burden to prove the affirmative defense to vicarious liability for supervisory harassment, if 

indeed Mercer was a “supervisor” for the purposes of Title VII. 

b. Liability for Co-Worker Harassment 

 Even if Mercer is not a supervisor, there remains a dispute of material fact as to whether 

employer liability exists with respect to the alleged conduct of Mercer and Kyle Hostetler. As 

discussed above, “employer liability in cases of coworker harassment is not derivative, but 

instead depends on the employer's ‘own acts or omissions.’” Hawkins, 517 F.3d at 340 (citing 

Blankenship v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997)). Thus, when a co-worker is 

the source of the harassment, an employer is liable ‘if its response manifests indifference or 

unreasonableness in light of the facts the employer knew or should have known.’” Id. at 338 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 17 of 26 PAGEID #: <pageID>
18

(citing Blankenship v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997)). In contrast, an 

employer’s response “is generally adequate ... if it is “reasonably calculated to end the 

harassment.” Id. at 340 (citing Jackson, 191 F.3d at 663-64) (holding that the employer failed to 

prove that its actions were “a reasonable attempt to prevent and correct the problem of racially 

harassing behavior”). 

As described above, Gonzalez has presented evidence that Mercer and Kyle Hostetler’s 

harassment took place on a daily basis, in the presence of multiple employees including Jeff 

Hostetler, and that Nelson Hostetler was in the office daily for the majority of the year.4

 Viewing 

the facts in the light most favorable to Gonzalez as the non-moving party, a reasonable jury 

could conclude that Nelson Hostetler knew or should have known of the harassment. Id. (citing 

Matsushita Elec. Indus. Co., 475 U.S. at 587). Moreover, it is undisputed that Defendant did not 

intervene or otherwise take any action to end Mercer and Kyle Hostetler’s alleged behavior 

toward Gonzalez. Thus, if a fact-finder determines that Defendant knew or should have known 

of such conduct, it could likewise find that Defendant’s response was indifferent and 

unreasonable. Accordingly, there exist genuine issues of material fact precluding the grant of 

summary judgment. 

Based on the above, Defendant’s Motion for Summary Judgment is DENIED with 

respect to Gonzalez’s federal and state law hostile work environment claims, as stated in Counts 

1, 2 and 6 of the Amended Complaint. 

B. Negligent Retention and Supervision 

Gonzalez also asserts claims under Ohio common law for negligent retention and 

supervision. Under Ohio Common law, the elements of negligent supervision and retention are: 

 

4

 Gonzalez’s evidence that Nelson was aware that Hancsel harbored racial animus toward “Mexicans” and “niggers” 

is inapposite, as Hanscel is not among the alleged perpetrators of the ongoing harassment on which Gonzalez’s 

claims are based. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 18 of 26 PAGEID #: <pageID>
19

1) an employment relationship; 2) incompetence of the employee; 3) actual or 

constructive knowledge of the incompetence by the employer; 4) an act or 

omission by the employee which caused the plaintiff's injuries; and 5) negligent 

retention of the employee by the employer, which action is the proximate cause of 

the plaintiff's injuries. 

Payton v. Receivables Outsourcing, Inc., 840 N.E.2d 236, 247 (Ohio App. 2005) (citing Mills v. 

Deehr, Cuyahoga App. No. 82799, 2004-Ohio-2338, 2004 WL 1047720, at ¶ 13 (Ohio App. 

2004); Steppe v. Kmart, 737 N.E.2d 58 (Ohio App. 1999)). 

As a threshold matter, Defendant argues that Plaintiff’s negligent supervision and 

retention claim nevertheless fails because Gonzalez has not alleged and cannot prove that any of 

Hostetler Trucking’s employees are individually liable to him at tort. Plaintiff contends that 

Ohio law imposes no such requirement. 

In Strock v. Pressnell, 527 N.E.2d 1235, (Ohio 1988), the Ohio Supreme Court 

considered whether a church could be held liable for negligent supervision or training of a 

minister who allegedly engaged in an affair with woman while providing marriage counseling to 

the woman and her then-husband. After concluding that the minister had committed no 

actionable wrong against the former husband, the Strock Court explained: 

It is axiomatic that for the doctrine of respondeat superior to apply, an employee 

must be liable for a tort committed in the scope of his employment. Likewise, an 

underlying requirement in actions for negligent supervision and negligent training 

is that the employee is individually liable for a tort or guilty of a claimed wrong 

against a third person, who then seeks recovery against the employer. Because no 

action can be maintained against [the minister] in the instant case, it is obvious 

that any imputed actions against the church are also untenable. 

Id. at 1244. In cases where the alleged underlying conduct at issue is a common law tort, 

subsequent Ohio Court of Appeals decisions, as well as the Sixth Circuit, have 

interpreted Strock to require that a plaintiff allege and prove that the employee who 

perpetrates that conduct is individually liable to the plaintiff for that tort. See Greenberg 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 19 of 26 PAGEID #: <pageID>
20

v. Life Insurance Co. of Virginia, 177 F.3d 507, 517-18 (6th Cir. 1999) (plaintiffs could 

not assert negligent training and supervision where they could not prove any set of facts 

that would support their claims of fraud and negligent misrepresention); Myers v. 

Goodwill Indus. of Akron, Inc., 721 N.E.2d 130, 134 (Ohio Ct. App. 1998) (negligent 

retention claim against employer failed where plaintiff could not show that employee's 

conduct rose to the level of intentional infliction of emotional distress); Campbell v. 

Colley, 680 N.E.2d 201, 206 (Ohio Ct. App. 1996) (because dispatcher could not be 

liable for negligence due to statutory immunity, employer also could not be held liable)). 

In Minnich v. Cooper Farms, Inc., 39 Fed. Appx. 289 (6th Cir. 2002) 

(unpublished), the Sixth Circuit considered an Ohio negligent retention and supervision 

claim that rested on alleged sexual harassment by an employee. In light of Strock and its 

progeny, Minnich surmised that, under Ohio law, a plaintiff subject to wrongful 

discriminatory conduct would also have to demonstrate a viable claim against an 

employee to sustain a negligent retention claim against an employer. Because there was 

no avenue by which the plaintiff could hold her co-worker personally liable for the 

wrongs done – the statute of limitations for assault and battery had lapsed, the employee 

could not be held individually liable for sexual harassment under Title VII (which 

provides only for employer liability), see Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 

(6th Cir. 1997), and the employee was not a supervisor or manager who could be liable 

for harassment under O.R.C. § 4112.01(A), see Genaro v. Cent. Transport, Inc., 703 

N.E.2d 782, 785 (Ohio 1999) – Minnich concluded that the district court had not erred in 

granting summary judgment to the Defendant on that claim. Minnich, 39 F.3d at 296. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 20 of 26 PAGEID #: <pageID>
21

Subsequently, however, an Ohio Court of Appeals for the first time considered the 

viability of negligent retention and supervision claims premised on discriminatory employee 

harassment. Specifically, Payton v. Receivables Outsourcing, Inc., 840 N.E.2d 236, 247 (Ohio 

Ct. App. 2005), considered whether a plaintiff subject to sexual harassment by a co-worker could 

sustain state law claims against her former employer for: 1) hostile work environment; 2) 

retaliation; and 3) negligent supervision and retention. Id. On the facts of the case, the plaintiff 

could not have held her co-worker individually liable for discrimination under O.R.C. § 4112, 

see Genaro, 703 N.E.2d at 785, nor for the common law tort of sexual harassment, which 

requires proof of the same elements necessary to establish a statutory claim for hostile work 

environment sexual harassment under O.R.C. § 4112.02(A). See Bell v. Cuyahoga Cmty. Coll.,

717 N.E.2d 1189, 1193 (Ohio Ct. App. 1998) (citing Kerans v. Porter Paint Co., 575 N.E.2d 428 

(Ohio 1991)). Nevertheless, Payton held that the plaintiff had established genuine issue of 

material fact as to all elements of the negligent retention and supervision claim, and, therefore, 

reversed the trial court’s grant of summary judgment for the defendant. Payton, 840 N.E.2d at 

247. 

That a different rule would apply to negligent retention and supervision cases based on 

discriminatory harassment and hostile work environment claims makes sense. Where the 

underlying employee conduct at issue is a common law tort, a plaintiff’s inability to establish a 

viable tort claim means that the plaintiff cannot establish that the employee committed wrongful 

acts that caused the plaintiff injury. As such, by definition, the plaintiff cannot satisfy all prima 

facie elements of a negligent supervision and retention claim. In contrast, the absence of 

individual employee liability under Title VII or O.R.C. § 4112 does not necessarily preclude a 

finding that the employee’s conduct was wrongful and caused the plaintiff injury. Thus, as 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 21 of 26 PAGEID #: <pageID>
22

Payton demonstrates, under Ohio law, a plaintiff’s inability to state a claim against an employee 

for wrongful discriminatory conduct does not bar employer liability claim unless the barrier to 

personal liability also negates an element of the negligent retention and supervision claim. See 

Strock, 527 N.E.2d at 1244 (“[A]n underlying requirement in actions for negligent supervision 

and negligent training is that the employee is individually liable for a tort or guilty of a claimed 

wrong against a third person.”) (emphasis added). As such, this Court defers to the Ohio state 

courts’ interpretation of its own laws and here applies the approach employed in Payton.

5

 

Ultimately, however, Gonzalez’s negligent retention and supervision claim would survive 

summary judgment even if Ohio law did require that Gonzalez be able to state a viable claim 

against the harassing employee. As discussed above, O.R.C. § 4112, imposes individual liability 

on managers and supervisors for discriminatory conduct found to be in violation of O.R.C. § 

4112. See Genaro, 703 N.E.2d at 785. An individual is a “manager” or a “supervisor” for the 

purposes of O.R.C. § 4112, when he or she meets the Title VII standard for “supervisor” 

articulated in Vance. Braun v. Ultimate Jetcharters, Inc., No. 5:12-cv-01635, 2013 WL 

2873238, *9 (N.D. Ohio July 25, 2013) (citing Plumbers & Steamfitters Joint Apprenticeship 

Committee v. Ohio Civil Rights Comm'n, N.E.2d 128, 132 (Ohio 1981) (“[F]ederal case law 

interpreting Title VII of the Civil Rights Act of 1964, [42 U.S.C. § ] 2000(e) et seq., ... is 

 

5 Defendant also cites Dortch v. Fowler, 588 F.3d 396 (6th Cir. 2009), for the proposition Gonzalez cannot sustain a 

negligent retention and supervision claim unless he alleges and proves that Mercer and/or Kyle Hostetler are 

individually liable to him in tort. Dortch considered whether a plaintiff injured in a traffic accident with a tractortrailer could sustain a Kentucky negligent retention claim against the employer of the tractor-trailer driver. Dortch, 

588 F.3d at 405. The plaintiff, Dortch, also asserted a separate negligence claim against the tractor-trailer driver, 

Fowler. Id. As the Sixth Circuit explained, Fowler’s employer “could be liable to Dortch for negligently supervising 

and retaining Fowler only if Fowler caused the traffic accident in question.” Id. Thus, because the jury returned a 

verdict in favor of the Fowler on the underlying negligence claim, the Sixth Circuit held that Dortch could not 

sustain a negligent retention claim against Fowler’s employer. Id. at 405-406. Thus, again, the absence of a viable 

underlying negligence claim negated one of the prima facie elements of negligent supervision and retention – 

something that does not necessarily occur in the absence of an individual claim against an employee who 

perpetuates a hostile work environment. In any case, even if Dortch were construed to preclude employer liability 

under Kentucky law in all cases where the employee cannot be held individually liable (including hostile work 

environment cases), as discussed above, Ohio common law imposes no such limitation – as evidenced by the Ohio 

Court of Appeals’ decision in Payton. 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 22 of 26 PAGEID #: <pageID>
23

generally applicable to cases involving alleged violations of [Ohio Revised Code] Chapter 

4112.”); Vance, 133 S.Ct. at 2443). As described above at length, there exists a genuine question 

of material fact as to whether Mercer is a “supervisor” under the meaning of Vance. 

Accordingly, there also exists a question of material fact as to whether Mercer could be held 

individually liable for discriminatory conduct under O.R.C § 4112. 

This Court therefore now turns to the question of whether, construing the evidence in the 

light most favorable to the non-moving party, Gonzalez is able to state a prima facie case of 

negligent supervision and retention under Ohio law. The first prong of the test for negligent 

retention requires that “an employment relationship exists between the employer and the alleged 

harasser.” Payton, 840 N.E.2d at 247 (Ohio App. 2005). Here, it is undisputed that Mercer and 

Kyle Hostetler were employed by the company. The first prima facie element is, therefore, 

satisfied. 

The second prong of the negligent retention and supervision test “requires incompetence 

on the part of the offending employee.” Id. Payton held that, for the purposes of this prong, 

“sexually harassing behavior is per se incompetent behavior.” Id. (“In this context, incompetence 

relates not only or exclusively to an employee's lack of ability to perform the tasks that his or her 

job involves. It also relates to behavior while on the job inapposite to the tasks that a job involves 

and which materially inhibits other employees from performing their assigned job tasks. 

Sexually harassing behavior is within that definition.”) (quoting Harmon v. GZK, Inc., 

Montgomery App. No. 18672, 2002 WL 191598, at *46 (Ohio App. Feb. 8, 2002)). Here, as 

described above, there is a genuine dispute of material fact about whether Gonzalez encountered 

harassment so severe and pervasive that it would materially affect the conditions of his 

employment. Under Ohio law, such harassment would be per se incompetent. Payton, 840 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 23 of 26 PAGEID #: <pageID>
24

N.E.2d at 247. Thus, there is likewise a question of material fact as to whether Gonzalez has 

satisfied the second prong of the negligent retention and supervision test. 

 The third prong “is actual or constructive knowledge of the abuse on the part of the 

employer.” Id. Defendant argues that Gonzalez has not satisfied this prong, because the 

Company had no prior knowledge of the alleged conduct. Moreover, Defendant seeks to 

distinguish Payton because the Payton plaintiff had complained to the employer of the harasser’s 

conduct on two separate occasions prior to the harassment then at issue in that case. 

Nevertheless, the legal standard for articulated in Payton is one of “actual or constructive

knowledge.” Id. (emphasis added). Here, Gonzalez has alleged that the harassment allegedly 

perpetrated by Mercer and Kyle Hostetler was continuous and ongoing over the course of 

months, in the presence of other employees. If a jury credits that testimony, it could conclude 

that the Company had actual or constructive knowledge of Mercer’s and/or Kyle Hostetler’s 

conduct well-before Gonzalez left his position. Accordingly, there is a genuine issue of material 

fact with respect to the third prong which is properly resolved by a jury. 

 The fourth prong requires “an act or omission by the employee which caused the 

plaintiff's injuries.” Id. As such, the Payton Court found the fourth prong’s “requir[ment that] 

an act by the alleged harasser ... caused the plaintiff's injuries” to be satisfied for the purposes of 

summary judgment where the plaintiff testified that she had experienced “nightmares, loss of 

appetite, a sudden inability to relate to men, and daily crying jags to support her allegation of 

injury.” Payton, 840 N.E.2d at 247. In this case, Gonzalez has testified that he found Mercer and 

Kyle Hostetler’s alleged continuous harassment hurtful, offensive and abusive, and it caused him 

distress. Although Defendant argues that Gonzalez experienced no such mental injury, 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 24 of 26 PAGEID #: <pageID>
25

especially in light of Gonzalez’s testimony that he had no real fear until his attorney mailed the 

April 5, 2010 letter, this is a matter of credibility to be weighed by the jury. 

 Finally, the fifth prong “requires negligent retention of the alleged harasser “by the 

employer, which action is the proximate cause of the plaintiff's injuries.” Id. This prong is 

satisfied “[i]f the employer had prior knowledge of the alleged harasser's incompetence, that is, 

his subjecting fellow employees to [] harassment, and despite this knowledge failed to intervene 

to prevent a recurrence of the behavior in the workplace.” Id. at 248. Likewise, here, if a jury 

credits Gonzalez’s evidence that the Company knew of the harassment and failed to intervene to 

prevent its continuation, it could find the fifth prong satisfied. 

In light of the above, the Court finds that there are genuine issues of material fact as to 

Gonzalez’s common law negligent retention and supervision claims that preclude the grant of 

summary judgment. Defendant’s Motion is therefore DENIED with respect to Counts 4 and 5 of 

the Amended Complaint. 

IV. CONCLUSION 

Based on the foregoing, Defendant’s Motion for Summary Judgment is GRANTED in 

part and DENIED in part. Defendant’s Motion is GRANTED with respect to Gonzalez’s 

federal and state law retaliation claims (Counts 3 and 7 of the Amended Complaint), and 

common law national origin harassment claim (contained in Count 6 of the Amended 

Complaint). Defendant’s Motion is DENIED with respect Plaintiff’s state and federal law 

 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 25 of 26 PAGEID #: <pageID>
26

hostile work environment claims (Counts 1, 2 and 6) and Plaintiff’s common law 

negligent retention and supervision claims (Counts 4 and 5). 

 IT IS SO ORDERED. 

s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: September 12, 2013 

Case: 2:11-cv-00137-ALM-MRA Doc #: 41 Filed: 09/12/13 Page: 26 of 26 PAGEID #: <pageID>