[Cite as Wholf v. Tremco, Inc., 2015-Ohio-171.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100771 

WILLIAM WHOLF

PLAINTIFF-APPELLANT 

vs. 

TREMCO INCORPORATED, ET AL.

DEFENDANTS-APPELEES 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-12-779194 

BEFORE: E.T. Gallagher, J., Celebrezze, A.J., and Stewart, J. 

RELEASED AND JOURNALIZED: January 22, 2015 
ATTORNEYS FOR APPELLANT

Matthew D. Greenwell 

Charles V. Longo 

Charles V. Longo Co., L.P.A. 

25550 Chagrin Boulevard 

Suite 320 

Beachwood, Ohio 44122 

ATTORNEYS FOR APPELLEES

Sue M. Douglas 

Amy Ryder Wentz 

Robert M. Wolff 

Littler Mendelson, P.C. 

1100 Superior Avenue, 20th Floor 

Cleveland, Ohio 44114 
EILEEN T. GALLAGHER, J.: 

{¶1} Plaintiff-appellant, William Wholf (“Wholf”), appeals an order granting summary 

judgment in favor of defendants-appellees, Tremco Incorporated (“Tremco”), Edward Nowak, 

and Timothy Sworney (collectively “appellees”). We find merit to the appeal and reverse the 

trial court’s judgment. 

{¶2} Tremco manufactures and sells roofing installation and weatherproofing services for 

buildings such as schools, hospitals, and manufacturing facilities. As part of its warranty 

program, Tremco provides on-site roofing inspections and preventative maintenance services, 

which are supported through an Online Information System (“OLI”). Wholf worked in 

Tremco’s OLI department from January 3, 2006, until his resignation on May 20, 2011. 

{¶3} Following his resignation, Wholf filed a complaint against Tremco in which he 

asserted two claims. In Count 1, a retaliation claim brought pursuant to R.C. 4112.02(I), Wholf 

alleged that (1) he engaged in a protected activity when he reported sexual harassment to 

company managers, (2) appellees were aware of the protected activity, (3) appellees took adverse 

actions against him, and (4) the protected activity was the cause of Tremco’s adverse actions 

against him. Count 2 alleged intentional infliction of emotional distress. 

{¶4} Appellees filed a joint motion for summary judgment on Wholf’s claims. The facts, 

as set forth in affidavits and deposition testimony, are as follows: Tremco hired Wholf in 2006 

as its primary OLI trainer under the title OLI Sales/Customer Support Manager. Employees in 

the OLI department receive roof inspection reports from field personnel and enter the 

information into online databases that customers may access to review detailed roofing 

inspection data and repair recommendations. OLI’s objective is to increase the number of 

customers and sales representatives who understand and use the OLI. Wholf was primarily 
responsible for training customers and Tremco sales representatives on how to use OLI so that 

customers could understand and use the system. Wholf was also supposed to identify and 

contact customers and sales representatives who would benefit from OLI and offer them training. 

{¶5} Wholf reported to the Inspection and Maintenance Service Manager. In 2010, 

Tremco hired Edward Nowak (“Nowak”) as the new Inspection and Maintenance Services 

Manager. From 2006 through 2010, Wholf received positive performance evaluations from his 

previous and current supervisors. 

{¶6} Sometime after Nowak joined Tremco, some female employees complained that 

Nowak made sexually suggestive comments to them and stared inappropriately at their breasts. 

One of the alleged victims was Melissa Wholf (“Melissa”), Wholf’s wife, who worked part time 

performing data entry. At a Tremco-sponsored luncheon on November 4, 2009, Nowak stared at 

Melissa’s breasts for an extended period of time. Employees at the table commented on 

Nowak’s behavior, but he did not seem to hear them and continued staring. Melissa felt 

uncomfortable and raised a menu to hide her breasts in an effort to end the situation. 

{¶7} Tremco’s non-harassment policy defines “harassment” as “any unwelcome or 

unsolicited verbal, visual, written, sexual or physical conduct that creates or contributes to a 

hostile or offensive work environment.” “Leering” is included as an example of harassment 

under the policy. The non-harassment policy provides that “if an employee observes or becomes 

aware of actual or perceived harassment of another employee, then the observing employee 

should immediately report the matter to a supervisor, manager, or officer (up to and including the 

President of the Company).” When harassment is reported, the policy provides that “Tremco 

will investigate all complaints promptly, thoroughly and fairly,” and “[n]o retaliation of any kind 

* * * will be taken against an employee for making a complaint.” 
{¶8} On February 9, 2010, Nowak met with Wholf to discuss his inappropriate use of 

time spent fixing coworkers’ computers instead of completing his assigned work. During this 

meeting, Wholf confronted Nowak about his conduct, which he believed violated Tremco’s 

non-harassment policy, and secretly recorded the conversation. According to Wholf, Nowak 

ignored the allegations and continued to make inappropriate comments and leer at women’s 

breasts. In March 2010, Wholf reported Nowak’s conduct to a Tremco vice president, who 

reported the allegations to James Tierney (“Tierney”), Tremco’s former General Counsel and 

Vice President of Human Resources. Meanwhile, Lisa Garcia (“Garcia”), another supervisor in 

the OLI department, reported harassment allegations from two other women to Tremco’s Human 

Resources Manager, Karen Halkovics (“Halkovics”). Tierney informed Halkovics of Wholf’s 

complaint at about the same time. As a result, the human resources department led an internal 

investigation into the complaint. 

{¶9} Halkovics interviewed the alleged victims; Melissa, Garcia, and Val Giampietro to 

hear their versions of the facts. She also met with Maureen Greeves, another Tremco manager 

who worked with Nowak, to see if she had any similar experiences, but she had not. Halkovics 

met with Nowak, informed him of the complaints and advised him that the reported behavior was 

unacceptable. Halkovics also counseled Nowak on Tremco’s non-harassment policy. There is 

no evidence that any more harassment occurred after Halkovics’s investigation and meeting with 

Nowak. 

{¶10} Wholf was nevertheless frustrated by what he believed was an inadequate 

investigation and reported the harassment to the “NETWORK” in June 2010. According to the 

non-harassment policy, the NETWORK is “an independent and autonomous service devoted to 

collecting and reporting employee complaints regarding practices and behaviors that may be 
unethical or in violation of Company policies.” In the NETWORK complaint, Wholf stated that 

“Nowak has been making inappropriate and unwelcomed sexual comments” and “has also been 

caught starring [sic] at female employee’s breasts.” He further complained that the lack of 

investigation may have been impacted by Halkovics’s personal relationship with Jim Solether 

(“Solether”).1 A week later, Wholf sent Randall Korach (“Korach”), then President of Tremco, 

an anonymous email once again reporting Nowak’s conduct and the ineffectual investigation. 

{¶11} In response to the NETWORK complaint and the anonymous emails, Tierney met 

with Korach, and spoke with Halkovics and Solether about their alleged affair. Tierney also 

retained outside counsel to review Halkovics’s previous investigation. Following the review of 

the investigation, Tierney completed a report and sent it to RPM International Inc., Tremco’s 

parent company, as required practice when a NETWORK complaint is made. 

{¶12} Wholf testified at deposition that after he complained about Nowak’s harassing 

behavior, he “felt a backlash” from Nowak beginning in March or April 2010. Wholf asserted 

that Nowak reassigned some of his projects to other employees and excluded him from meetings. 

 Consequently, Wholf informed Todd Sworney (“Sworney”), Tremco’s Drafting Supervisor, that 

he believed Nowak was retaliating against him for reporting his harassing behavior even though 

Nowak gave Wholf a positive performance evaluation in late May 2010. 

{¶13} In November 2010, Solether reorganized the management structure of the 

company. The OLI production department was reorganized such that Sworney became the 

supervisor of quality control and training personnel, and Garcia became the supervisor of data 

entry personnel. Nowak informed Wholf that Sworney would be his new supervisor, and 

 1

 Jim Solether is Tremco’s Director of Business Operations. Wholf believed Halkovic and Solether were 

involved in a romantic relationship.
removed some of Wholf’s core responsibilities and reassigned them to other employees. Prior 

to this change, Wholf and Sworney were equally ranked in management. As part of the 

reorganization, Wholf’s former job title, OLI Sales-Customer Support Manager, was changed to 

OLI Sales-Customer Coordinator. Solether testified that at the time of the reorganization, he 

had no knowledge of any harassment complaints lodged against Nowak. 

{¶14} On November 5, 2010, Sworney instructed Wholf that, in addition to his regular 

duties, he was now required to keep a detailed daily time sheet to account for his time throughout 

the day. Sworney’s goal was for Wholf to generate enough outside interest in OLI training that 

he could train on a full-time basis. However, Wholf did not meet Sworney’s production goals 

and did not increase his training workload. On November 11, 2010, Nowak informed Wholf 

that due to budget cuts, Tremco would no longer reimburse his personal cell phone, which he had 

used for work-related business. 

{¶15} In December 2010, Sworney instructed Wholf that he must devote half of his 

workday to data entry. Two weeks later, Sworney placed Wholf on a “Performance 

Improvement Plan” (“PIP”), because he was not meeting his daily data entry quotas. The PIP 

subjected Wholf to more supervision by Sworney and Halkovics. In response, Wholf created an 

“action plan” to address concerns raised in the PIP. In the plan, Wholf stated that Sworney was 

motivated to issue the PIP by discrimination, retaliation, and workplace harassment. On January 

27, 2011, Tremco lowered Wholf’s job grade from level 10 to level 9. Although his salary was 

not affected, his bonus eligibility was reduced by the potential amount of $1,300. 

{¶16} Wholf complained to Tierney that he believed Sworney was retaliating against him. 

 Tierney questioned Sworney about Wholf’s retaliation claims and subsequently convinced 

Sworney to lower Wholf’s data entry quota from 50 forms per half-day to 40 forms per half-day. 
Tierney also assigned another Human Resources Manager to work with Sworney and Wholf on 

the PIP, instead of Halkovics, whom Wholf did not trust. 

{¶17} On February 15, 2011, Sworney informed Wholf that he would be assuming 

another employee’s responsibilities while she was on maternity leave. These responsibilities 

included closeouts and mail for the OLI department. “Mail” involved receiving large bankers 

boxes full of roof-inspection forms, which had to be opened, logged into several databases, and 

folders created for each form. Closeouts entail tallying all the time worked on the 

roof-inspection forms and closing out that job in various databases. Wholf’s PIP was modified 

to reflect these additional responsibilities. 

{¶18} On April 15, 2011, Sworney expressed concerns that Wholf was not meeting the 

expectations listed in his PIP. On May 3, 2011, Wholf was offered a position with another 

company. Wholf submitted a two-week notice to Sworney in which he stated that the 

harassment and retaliation against him resulting from his complaints about Nowak forced him to 

leave the company. 

{¶19} The trial court granted appellees’s motion for summary judgment and found that 

Wholf failed to establish that the alleged retaliation was the “but-for” cause of appellees’s 

adverse employment action. It also found there was no evidence to support his intentional 

infliction of emotional distress claim because appellees’s alleged actions were not “extreme and 

outrageous.” Wholf does not appeal the judgment on his intentional infliction of emotional 

distress claim. He appeals the judgment in appellees’s favor on his retaliation claim and raises 

two assignments of error. 

Standard of Review 
{¶20} We review an appeal from summary judgment de novo. Grafton v. Ohio Edison 

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The party moving for summary judgment 

bears the burden of demonstrating the absence of a genuine issue of material fact as to the 

essential elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 

75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party demonstrates 

entitlement to summary judgment, the burden shifts to the nonmoving party to produce evidence 

related to any issue on which the party bears the burden of production at trial. Civ.R. 56(E). 

Summary judgment is appropriate when, after construing the evidence in a light most favorable 

to the party against whom the motion is made, reasonable minds can only reach a conclusion that 

is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 

696 N.E.2d 201 (1998). 

The “But-For” Causation Standard 

{¶21} In the first assignment of error, Wholf argues the trial court erroneously applied the 

“but-for” causation standard articulated in Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. __, 

133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), to his retaliation claim. He contends the court should 

have applied the less stringent “motiving factor” causation standard that he claims courts applied 

prior to Nassar. 

{¶22} In Nassar, the United States Supreme Court defined the applicable causation 

standard for employment retaliation claims brought pursuant to Title VII, 42 U.S.C. 2000 et seq. 

(“Title VII”), as amended by the Civil Rights Act of 1991 (“1991 Act”), 105 Stat. 1071. Title 

VII defines the term “unlawful employment practice” as discrimination based on any one of 

seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment 

discrimination, and submitting or supporting a complaint about discrimination. Nassar at 2517. 
 However, five of the seven prohibited discriminatory actions relate to employer actions based on 

the employee’s status and are governed by 42 U.S.C. 2000e-2(m) (“2000e-2(m)”). “The text of 

§ 2000e-2(m) says nothing about retaliation claims.” Nassar at 2528. 

{¶23} Title VII’s anti-retaliation provision appears in 42 U.S. 2000e-3(a) (“2000e-3(a)”) 

and states, in relevant part: 

It shall be an unlawful employment practice for an employer to discriminate 

against any of his employees * * * because he has opposed any practice made an 

unlawful employment practice under this subchapter, or because he has made a 

charge in any manner in an investigation, proceeding, or hearing under this 

subchapter. 

Commenting on this language and the general statutory structure, the Nassar court held that 

“Title VII retaliation claims must be proved according to traditional principles of but-for 

causation, not the lessened causation test stated in § 2000e-2(m).” Nassar at 2517. The 

“but-for” standard requires proof that the unlawful retaliation would not have occurred if the 

employee had not engaged in protected anti-discrimination activity. Id. at 2529. The 

employee’s protected activity must “have had a determinative influence on the outcome.” Id. at 

2525. 

{¶24} Ohio courts have held that since Ohio’s antidiscrimination laws contained in R.C. 

Chapter 4112 are modeled after Title VII, “federal case law interpreting Title VII * * * is 

generally applicable to cases involving alleged violations of R.C. Chapter 4112.” Greer-Burger 

v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 12. See also Robinson v. 

Quasar Energy Group LLC, 8th Dist. Cuyahoga No. 101062, 2014-Ohio-4218, ¶ 18. 

{¶25} Nevertheless, Wholf contends R.C. 4112.02 is different from Title VII in several 

respects. First, he observes that while Congress intentionally separated status-based 

discrimination claims from conduct-based retaliation claims in two separate provisions of Title 
VII (2000e-2(m) and 2000e-3(a)), both types of claims are set forth in a single section of the 

Revised Code (R.C. 4112.02(I)). Wholf argues that Title VII has a complex statutory structure 

that distinguishes between “status-based” and “conduct-based” discrimination claims, whereas 

Ohio’s anti-retaliation provision is located in the same section that prohibits status-based 

discriminatory practices. 

{¶26} Second, Wholf argues that R.C. 4112.02 is more broadly worded than its federal 

counterpart. Unlike Congress’s 1991 amendment to the Civil Rights Act of 1964, which 

adopted a “motiving factor” causation standard, Ohio’s Chapter 4112 does not contain a “mixed 

motives” provision. The absence of “mixed motives” language in R.C. 4112.02(I) is central to 

our discussion. 

{¶27} However, the difference in statutory structure between the federal and Ohio 

anti-discrimination statutes has little or no relevance. Indeed, the General Assembly separated 

status-based discrimination claims from retaliation claims in separate subsections of R.C. 

4112.02. And, despite Wholf’s argument to the contrary, Ohio’s anti-retaliation provision is 

nearly identical to Title VII’s anti-retaliation provision. Title VII’s anti-retaliation provision 

states, in relevant part: 

It shall be an unlawful employment practice for an employer to discriminate 

against any of his employees or applicants for employment * * * because he has 

opposed any practice made an unlawful employment practice by this title, or 

because he has made a charge, testified, assisted, or participated in any manner in 

an investigation, proceeding, or hearing under this title. 

42 U.S.C. 2000e-3(a) (emphasis added). R.C. 4112.02(I) states, in relevant part: 

It shall be an unlawful discriminatory practice * * * 

(I) For any person to discriminate in any manner against any other person because

that person has opposed any unlawful discriminatory practice defined in this 

section or because that person has made a charge, testified, assisted, or 
participated in any manner in any investigation, proceeding, or hearing under 

sections 4112.01 to 4112.07 of the Revised Code. 

(Emphasis added.) 

{¶28} In contrast to these provisions, Title VII’s “mixed motives” provision, which 

applies to status-based discrimination claims, states in relevant part: 

Impermissible consideration of race, color, religion, sex, or national origin in 

employment practices. Except as otherwise provided in this title [42 U.S.C. 

2000e et seq.], an unlawful employment practice is established when the 

complaining party demonstrates that race, color, religion, sex, or national origin 

was a motivating factor for any employment practice, even though other factors 

also motivated the practice. 

42 U.S.C. 2000e-2(m) (emphasis added). 

{¶29} The word “because” appears in both the Ohio and federal anti-retaliation 

provisions but does not appear in Title VII’s “mixed motives” provision. Applying the ordinary 

meaning of the word “because,” the Nassar court concluded that 2000e-3(a) “makes it unlawful 

for an employer to take adverse employment action against an employee ‘because’ of certain 

criteria.” Nassar, 133 S.Ct. 2517 at 2528, citing Gross v. FBL Fin. Serv. Inc., 557 U.S. 167, 129 

S.Ct. 2343, 174 L.Ed.2d 119 (2009). Therefore, the plain language of R.C. 4112.02(I) provides 

a “cause-in-fact” causation standard rather than a mixed-motives standard. 

{¶30} Anti-discrimination jurisprudence further compels this conclusion and informs the 

application of the “but-for” standard to employment retaliation claims. The starting point for 

analyzing this issue is the United States Supreme Court’s decision in McDonnell Douglas Corp. 

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in which the court prescribed “the 

order and allocation of proof in a private, non-class action challenging employment 
discrimination.”2 Id. at 972. In McDonnell Douglas, the Supreme Court outlined the three-step 

burden-shifting framework known as the McDonnell Douglas test, which applies in cases where 

there is no direct evidence of discrimination.3 Under the McDonnell Douglas framework, the 

plaintiff must first establish a prima facie case of discrimination. Id. at 802. If the plaintiff 

makes a prima facie case, the burden of production shifts to the employer to articulate some 

legitimate, nondiscriminatory reason for the employment decision. Id. at 802-803. If the 

employer successfully meets this burden, then the burden shifts back to the plaintiff to show, by a 

preponderance of the evidence, that the proffered reason was really a pretext for unlawful 

discrimination. Id. at 804. 

{¶31} In Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 

L.Ed.2d 207 (1981), the court elaborated on the burden shifting framework and explained that 

plaintiff’s initial “burden of establishing a prima facie case of disparate treatment is not onerous.”

 Id. at 253. The plaintiff is not required to conclusively establish all the elements of his 

discrimination claim in the prima facie case because the prima facie case simply creates a 

presumption of discrimination that forces the employer to produce evidence of a legitimate, 

non-discriminatory reason for the adverse employment action. St. Mary’s Honor Ctr. v. Hicks, 

509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). 

{¶32} In Hicks, the court further explained that once the employer produces some 

evidence in its defense “(whatever its persuasive effect), * * * the trier of fact proceeds to decide 

 2

 The McDonnell Douglas framework was adopted by this state in Barker v. 

Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807 (1983). 

3

 Direct evidence is evidence which, if believed, would prove the existence of a fact in issue 

without inference or presumption. Mauzy v. Kelly Servs. Inc., 75 Ohio St.3d 578, 583, 664 N.E.2d 

1272 (1996). 
the ultimate question: whether plaintiff has proved that the defendant intentionally discriminated 

against him because of his [protected trait].” Id. at 510. Thus, the plaintiff’s burden in the 

first stage of the McDonnell Douglas framework is one of production, not persuasion, but the 

plaintiff must ultimately prove all the elements of a retaliation claim by a preponderance of the 

evidence. McDonnell Douglas at 802-804; Burdine at 253. 

{¶33} One of the most important discrimination cases concerning the applicable 

causation standard in retaliation cases is Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 

1775, 104 L.Ed.2d 268 (1989). In Price Waterhouse, the court was asked to determine whether 

a Title VII plaintiff could prevail on a sex discrimination claim if she established that her gender 

was a factor in the adverse employment action when the employer was able to demonstrate that 

legitimate non-discriminatory factors also played a role. Price Waterhouse presented a situation 

where both legitimate and discriminatory reasons, i.e, “mixed motives,” motivated the adverse 

employment decision. 

{¶34} The Price Waterhouse court held that, 

in cases where the plaintiff offers “direct evidence” of unlawful discrimination 

and evidence as a whole permits a conclusion that both permissible and 

impermissible considerations played a role in the employer’s decision, the 

plaintiff need only show that the unlawful motive was a substantial motivating 

factor in that decision. If the finder of fact concludes that the plaintiff has 

carried this burden, the burden of persuasion shifts to the defendant to prove that 

the unlawful motive was not a but-for cause, i.e., that the same action would have 

been taken, because of legitimate considerations, in the absence of the unlawful 

motive. 

Harris v. Giant Eagle, Inc., 133 Fed.Appx. 288, 296 (6th Cir.2005), quoting Miller v. Cigna 

Corp., 47 F.3d 586, 594 (3d Cir.1995)(en banc)(emphasis added in Harris). 

{¶35} Thus, the Price Waterhouse court held that once there is direct evidence that the 

protected trait was a motivating factor in the adverse treatment of the employee, the employer 
could escape liability if it could show, by a preponderance of the evidence, that it would have 

taken the same action even in the absence of the protected trait or activity. Id. at 249. The 

court explained that “[a] court that finds for a plaintiff under this standard has effectively 

concluded that an illegitimate motive was a ‘but-for’ cause of the employment decision.” Id., 

citing Mt. Healthy City Bd. Of Edn. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);

Givhan v. W. Line Consol. School Dist., 439 U.S. 410, 417, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). 

{¶36} In response to Price Waterhouse, Congress passed the 1991 Act, which added the 

“motivating factor” language to 2000e-2(m) and lowered the plaintiff’s evidentiary burden in 

Title VII employment discrimination cases. As previously stated, under the 1991 Act, courts 

could find liability for plaintiffs who could demonstrate a protected trait was a motivating factor 

in the adverse employment action even though the employer could also demonstrate it would 

have taken the same action regardless of the protected trait. 42 U.S.C. 2000e-2(m). Therefore, 

while an employer could completely avoid Title VII liability under Price Waterhouse if it could 

demonstrate a legitimate, non-discriminatory reason for the adverse employment action, the 

employer could no longer escape liability under the 1991 Act under the same circumstances. 

{¶37} It was clear the 1991 Act applied to status-based discrimination claims, but 

Congress did not indicate that it applied to retaliation claims. Most courts continued to apply 

the standard articulated in Price Waterhouse to retaliation claims because retaliation claims were 

not included in 2000e-2(m), which contains the “motivating factor language.” See Kubicko v. 

Ogden Logistics Serv., 181 F.3d 544 (4th Cir.1999); McNutt v. Bd. of Trustees, 141 F.3d 706 (7th 

Cir.1998); Woodson v. Scott Paper Co., 109 F.3d 913, 932-936 (3d Cir.1997), cert. denied, 139 

L.Ed.2d 230, 118 S. Ct. 299 (1997); Tanca v. Nordberg, 98 F.3d 680, 682-685 (1st Cir.1996),

cert. denied, 137 L.Ed. 2d 333, 117 S.Ct. 1253 (1997); Riess v. Dalton, 845 F.Supp. 742, 
744-745 (S.D. Cal.1993); Norbeck v. Bais Elec. Power Coop, 215 F.3d 848 (8th Cir.2000). See 

also Lewis v. Young Men’s Christian Assn., 208 F.3d 1303, 1305 (11th Cir.2000) (holding that 

the 1991 Act does not apply to a dual motive retaliation claim under ADEA).4 

{¶38} Until recently, Ohio courts have not defined a particular causation standard to be 

applied in either status-based or conduct-based discrimination actions, and no Ohio court has 

expressly held that retaliation claims survive where there is evidence that legitimate factors 

played a role in the adverse employment action. And no Ohio court defined the “but-for” 

causation standard until the Tenth District released Smith v. Ohio Dept. of Public Safety, 10th 

Dist. Franklin No. 12AP-1073, 2013-Ohio-4210. 

{¶39} Nevertheless, Ohio case law preceding Nassar applied the “but-for” causation 

standard to retaliation claims. Wharton v. Gorman-Rupp Co., 309 Fed.Appx. 990, 998-999 (6th 

Cir.2009). In Wharton, the Sixth Circuit Court of Appeals, applying Ohio law, held that in 

order for a plaintiff to prevail on a retaliation claim brought pursuant to R.C. 4112.02(I), she 

must establish that her protected activity was the reason for the adverse employment action taken 

against her. 

{¶40} The employee in Wharton conceded that her retaliation claim was based on 

circumstantial evidence. The court applied the McDonnell-Douglas framework and concluded 

that the employee established her prima facie case of retaliation. It also determined there were 

 4

 A few courts applied the motivating factor standard to retaliation claims brought pursuant 

to 42 U.S.C. 2000e-3(a). See, e.g., Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881 (7th Cir.1996); 

Beinlich v. Curry Dev. Inc., 4th Cir. No. 94-1465, 1995 U.S.App. LEXIS 12109 (May 22, 1995); 

Heywood v. Samaritan Health Sys., 902 F.Supp. 1076 (D. Ariz. 1995). However, these cases were 

criticized or later reversed within their own circuits. For example, the Seventh Circuit overruled 

Veprinsky and adopted a “but for” causation standard. See, e.g., Serwatka v. Rockwell Automation, 

Inc., 591 F.3d 957 (7th Cir.2010). In Woodson, the Third Circuit also criticized Veprinsky, along 

with Beinlich and Heywood for lack of analysis. See Woodson, 109 F.3d 913, 915 at n.27. 
genuine issues of fact as to whether the employer’s stated reason for the adverse employment 

action was a pretext. Wharton at 999. Accordingly, the Sixth Circuit reversed the district 

court’s order granting summary judgment to the employer. 

{¶41} The Wharton court, like most Ohio courts, did not discuss the causation element of 

the prima facie case in any detail. Instead, it determined that the employer could be held liable 

because it failed to produce evidence of a nondiscriminatory motive for the adverse action. Had 

the employer established a legitimate, nondiscriminatory reason for its action, it would have 

avoided liability under R.C. 4112.02(I). Id. at 999. Thus, the Wharton court was still applying 

the “but-for” causation standard articulated in Price Waterhouse to retaliation claims when it 

released its decision in 2009. 

{¶42} In 2013, the United States Supreme Court decided Nassar, 570 U.S. __, 133 S.Ct. 

2517, 186 L.Ed.2d 503, and held that Title VII retaliation claims must be proved according to 

traditional principles of but-for causation, not the lessened causation test stated in 2000e-2(m). 

Id. at 2533. Despite Wholf’s argument to the contrary, the “but-for” standard articulated in 

Nassar is not a new standard; it is a clarification of the standard that has been applied in 

retaliation cases since the Supreme Court decided Price Waterhouse in 1989. See, e.g., Lascu v. 

Apex Paper Box Co., 8th Dist. Cuyahoga No. 95091, 2011-Ohio-4407, ¶ 27 (once employer has 

articulated a valid, nondiscriminatory rationale for retaliatory action, burden shifts to employee 

“to prove that discrimination was the real reason for the discharge.”); Wittman v. Akron, 9th Dist. 

Summit No. 21375, 2003-Ohio-5617 (expressly applying Price Waterhouse to retaliation claim). 

{¶43} It is important to note that Nassar does not mention the term “prima facie case,” 

nor does it refer to the McDonnell Douglas burden shifting framework. However, as 

previously explained, the plaintiff’s evidentiary burden of establishing a prima facie case in the 
first step of the burden-shifting analysis is one of production, not persuasion, and it is not 

“onerous.” Burdine, 450 U.S. at 255-256. Burdine has not been overruled by any United 

Supreme Court decision. Therefore, pursuant to Burdine, the plaintiff is not required to

conclusively prove all the elements of his claim at the prima facie stage of the burden-shifting 

analysis. Under Nassar, the plaintiff must ultimately prove, by a preponderance of the 

evidence, that the plaintiff’s protected activity was the determinative factor in the employer’s 

adverse employment action. 

{¶44} As previously stated, Title VII’s “mixed motives” provision applies to 

“status-based” discrimination claims. That is not the issue here. Wholf has brought a 

retaliation claim pursuant to R.C. 4112.02(I), which is almost identical to 2000e-3(a). 

Therefore, federal case law interpreting that section, including the “but-for” causation standard 

defined in Nassar, is applicable to Wholf’s retaliation claim. 

{¶45} Accordingly, the first assignment of error is overruled. 

Prima Facie Case of Retaliation

{¶46} In the second assignment of error, Wholf argues the trial court erred in summarily 

dismissing his retaliation claim because he produced sufficient evidence to establish a genuine 

issue of material fact that appellees retaliated against him because of his participation in 

protected activities in violation of R.C. 4112.02(I). This assigned error calls for the application 

of the “but-for” causation standard within the McDonnell Douglas–Burdine burden shifting 

framework. 

{¶47} There is no dispute that Wholf engaged in protected activity when he reported 

sexual harassment, or that appellees knew he engaged in protected activity. Nor do appellees 

challenge the adverse employment action element of Wholf’s retaliation claim. The sole issue is 
whether Wholf established the requisite causal connection between the protected activity and the 

adverse action to survive summary judgment. As previously stated, Wholf was not required to 

conclusively establish the causation element of his claim at the first stage of the McDonnell 

Douglas test; he was only required to produce evidence demonstrating that appellees took 

adverse employment action against him because of his participation in protected activity. 

{¶48} Appellees argue Wholf cannot establish the causation element of his prima facie 

case because the adverse action occurred before the protected activity. Appellees contend 

Wholf’s surreptitious recording of his February 9, 2010 meeting with Nowak established that the 

protected activity occurred after the alleged retaliatory acts. Wholf accuses Nowak on the 

recording of retaliating against him by “lea[ving] [him] out of everything,” and pushing “him 

out” of “[a]nything to do with training.” Therefore, appellees conclude, the recording proves 

Nowak began excluding Wholf from projects and meetings before he engaged in any protected 

activity. 

{¶49} However, Wholf continued to engage in protected activity over the next several 

months and endured additional adverse employment actions. After Wholf confronted Nowak 

about the harassment at the February 9, 2010 meeting, he reported the harassment to a vice 

president of the company in March 2010. (Wholf Depo. 84, Tierney Depo. 34.) Despite 

Wholf’s generally positive performance evaluation in May 2010, Wholf testified that he was 

suspicious of the evaluation and questioned Nowak’s motive for some of the favorable remarks. 

He explained: 

Well * * * obviously, you can see I got some exceeds in here, successfuls. * * * 

[w]ork is performed as assigned and is done on time, you know. So overall, a 

good review. 
Understand, though, Ed’s a very smart man. Now, it would have been dumb for 

him to give me a completely bad review and then say, Well, it’s just — that’s how 

I view your work. 

So instead, since it was almost review time anyways when this started, I get an 

appropriate review, which is * * * good, and then I start getting pushed off of 

projects, transferred to a new supervisor. And then within, you know, a month or 

so of being * * * under Tim Sworney, I’m on a performance evaluation. 

{¶50} When asked what problems Wholf was having before his evaluation, he explained: 

Just the avoidance. You know, I felt like I was starting to get pushed out of some 

projects, but not formally. You know, it just felt like a little backlash from my 

conversation with him. 

{¶51} Wholf was frustrated by what he believed was an inadequate response to Nowak’s 

harassment. In June 2010, Wholf made a NETWORK complaint about Nowak, Solether, and 

Halkovics to the Ethic and Compliance Employee Hotline. (Wholf Depo. 160.) This was the 

first time Wholf complained about Solether and Halkovics’s conduct. The NETWORK 

complaint alleged not only Nowak’s sexual harassment but also Halkovics’s failure to properly 

investigate Wholf’s original complaint because her investigation “may have been impacted by a 

personal relationship between Karen Halkovics and Jim Solether.” A week later, Wholf sent the 

President of Tremco an anonymous email once again reporting Nowak’s conduct and the feeble 

investigation. 

{¶52} Following Wholf’s complaints, in October 2010, Nowak informed Wholf that his 

title was going to be changed from manager to coordinator, a label that signifies less 

responsibility. At this time, Nowak (1) removed Wholf from his position as “Project Leader on 

all OLI enhancements,” (2) removed Wholf as the “Project Leader on EDGE (Electronic Data 

Gathering Equipment) Project,” and (3) removed Wholf as the “liaison to [the] IT Department 

from Sales Representatives & Customers.” (Nowak Depo. at 114-123, Wholf Depo. at 204-207, 

218-221.) 
{¶53} Nowak also added the phrase “perform other duties as assigned” to Wholf’s job 

description, and Sworney, formerly Wholf’s equal, became his immediate supervisor. Sworney 

required Wholf to keep a daily time log to account for every minute of his workday. No one else 

within the OLI production department was required to keep daily time sheets. Pursuant to the 

new job description, Wholf was responsible for mail and closeouts in addition to daily data entry 

quotas. Wholf testified that these assignments could not realistically be completed by the end of 

each workday. When Wholf failed to meet Sworney’s expectations, he was placed on a PIP. 

Therefore, despite appellees’ argument to the contrary, there is evidence to show that adverse 

employment action was taken after Wholf first complained in February 2010. 

{¶54} Obviously, the less time that passes between the protected activity and the 

retaliatory action, the more conspicuous the causal connection. Nevertheless, “retaliation has 

been found when termination followed the protected activity by over one year.” Smith v. 

Superior Prod., 10th Dist. Franklin No. 13AP-690, 2014-Ohio-1961, ¶ 33, citing Harrison v. 

Metro. Govt. Of Nashville, 80 F.3d 1107, 1119 (6th Cir.1996), overruled on other grounds by 

Jackson v. Quanex Corp., 191 F.3d 647, 667 (6th Cir.1999). 

{¶55} Several months elapsed between Wholf’s first complaint of harassment to Nowak 

in February 2010 and his apparent demotion from manager to coordinator and data entry worker 

in November 2010. However, Wholf continued to lodge complaints against Nowak and made 

his first complaints against Halkovics and Solether during this nine-month period. Indeed, 

appellees’ retaliatory acts became increasingly more harsh as Wholf persisted with his 

complaints. We therefore find there is a genuine issue of material fact as to whether appellees 

retaliated against Wholf because of his protected activity. 
{¶56} Wholf established his prima facie case of retaliation by producing evidence of his 

protected activity and of the adverse employment actions that were taken against him because of 

those activities. The trial court erroneously imposed the burden on Wholf to conclusively prove 

the causation element in his prima facie case, when his initial burden only required production of 

some evidence as to each element of the prima facie case. Therefore, the trial court misapplied 

the “but-for” standard of causation in this case, and as a result, erroneously concluded that Wholf 

failed to establish his prima facie case of retaliation in the first stage of the McDonnell Douglas 

analysis. 

{¶57} The second assignment of error is sustained. 

{¶58} Judgment reversed and remanded to the trial court for further proceedings. 

It is ordered that appellant recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the common pleas court to carry this 

judgment into execution. 

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

Rules of Appellate Procedure. 

EILEEN T. GALLAGHER, JUDGE 

FRANK D. CELEBREZZE, JR., A.J., and 

MELODY J. STEWART, J., CONCUR