[Cite as Gott v. Baker Concrete Constr., Inc., 2026-Ohio-3538.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JASON GOTT, :
Plaintiff-Appellant, :
No. 115899
v. :
BAKER CONCRETE :
CONSTRUCTION, INC.,
:
Defendant-Appellee.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFRIMED IN PART, REVERSED IN PART, AND
REMANDED
RELEASED AND JOURNALIZED: September 10, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-108977
Appearances:
Zipkin Whiting Co., L.P.A., Lewis A. Zipkin, Kevin M.
Gross, and Ryan P. Dalton, for appellant.
Jackson Lewis P.C., Douglas B. Schnee, and Julia L.
Denmeade, for appellee.
ANITA LASTER MAYS, J.:
Plaintiff-appellant Jason Gott (“Gott”) appeals the judgment of the
Cuyahoga County Court of Common Pleas granting summary judgment in favor of defendant-appellee Baker Concrete Construction, Inc. (“Baker”) on Gott’s claims for
a race-based, hostile work environment in violation of R.C. 4112.02(A) and
retaliation in violation of R.C. 4112.02(I). After a thorough review of the record and
applicable law, we affirm in part, reverse in part, and remand.
I. Facts and Procedural History
Gott began his career in the construction trades in 2013 when he
entered the Construction Craft Laborer Apprenticeship Program with Building
Laborers’ Union Local No. 310. Within two years, Gott completed approximately
4,000 hours of on-the-job training and approximately 436 hours of classroom
instruction and he attained the status of journeyman. After becoming a journeyman
in 2015, Gott worked on numerous large-scale construction projects in Cuyahoga
County, including all three Amazon Fulfillment Centers, the 34-story Lumen
Playhouse Square project, the Hilton Hotel in downtown Cleveland, the
MetroHealth parking garages, and the Case Western Reserve University parking
garages.
On January 3, 2023, Gott began his employment with Baker as a
laborer foreman. Gott was initially assigned to a dormitory construction project at
Case Western Reserve University. In March 2023, Baker reassigned Gott to the
Sherwin-Williams construction site in downtown Cleveland, where he served as the
concrete pour foreman and supervised crews of six to eight laborers at a time. Gott
testified that the Gott-led concrete crew poured over 30 floors of concrete on that
project. Gott described the work as physically demanding, explaining that the job required digging, setting forms, standing in concrete, and working alongside the
crew to direct and assist with each pour.
In his position as a laborer foreman, Gott reported on a day-to-day
basis to laborer foreman Mike Wozny (“Wozny”). Gott was also supervised by
laborer general foreman Matthew Doherty (“Doherty”) and, beginning in July 2023,
by concrete superintendent and general foreman Donnie Metcalf (“Metcalf”). Gott’s
written job description identified responsibilities that included overseeing jobsite
logistics, coordinating the handling of equipment and materials, tracking and
escorting deliveries, and performing sign-in and sign-out procedures, in addition to
assisting with installation tasks alongside other site supervisors.
Gott and Metcalf had a prior working relationship that predated their
employment with Baker. The two men had worked together for several years at
Cleveland Cement Contractors, where Gott served as a concrete foreman and
Metcalf served as concrete superintendent and Gott’s direct supervisor. Gott
testified that while he was employed at Cleveland Cement, Metcalf subjected him to
racial harassment, including repeatedly calling him “Puerto Rican,” calling him a
“spic,” and using the “N” word in reference to him, telling Gott that he “looked like
one and worked like one too.” Gott testified that he complained about Metcalf’s
conduct at Cleveland Cement to Joe Capone (“Capone”), who at that time served as
Metcalf’s direct supervisor and as a human resources officer for Cleveland Cement.
Metcalf categorically denied ever using a racial slur toward Gott at any point during
their working relationship.
Baker hired Metcalf in July 2023. Although Metcalf maintained a
high-level supervisory role over Gott, he was not Gott’s direct or daily supervisor.
Capone was also employed at Baker as Metcalf’s supervisor during the relevant
period. Gott did not report any concerns about Metcalf’s prior conduct to Baker at
the time Metcalf was hired. Gott testified that after Metcalf joined Baker in August
2023, Metcalf disregarded the chain of command and directed members of Gott’s
crew on what to do, conduct Gott characterized as “undermining” his authority. Gott
further testified that, beginning in August 2023 and continuing through
December 21, 2023, Metcalf “called [him] names” while they worked together at
Baker.
The specific incidents that gave rise to Gott’s harassment complaint
occurred on December 20 and December 21, 2023. Gott testified at his deposition
that Metcalf used the racial slur “spic” toward him four to five times during this twoday period. On December 20, 2023, during a concrete pour at Case Western Reserve
University, Gott was discussing a Facebook message his father had sent him
concerning Gott’s ancestry, which Gott identifies as Puerto Rican, Mexican, and
German. According to Gott, Metcalf responded by saying, “Oh, so you’re a German
spic,” and then laughed. Gott testified that when Metcalf’s son came over, Metcalf
repeated the remark to his son and treated it as a joke. Gott testified that the slur
“put me down. It lowered my self-esteem . . . . It was humiliating.”
The following day, December 21, 2023, Gott was discussing his
ancestral background with Wozny when, according to Gott, Metcalf interjected, “What did I call you yesterday? Oh wait, I remember, ‘a German spic.’” Gott further
testified that, later the same day, a crew member named Dalton was not wearing his
protective vest. Gott testified that he directed Dalton to put on a vest and that, in
front of the concrete crew, Metcalf told Dalton, “Don’t worry about that spic,” while
Gott was on his walkie-talkie advising Doherty that Dalton was not putting on the
vest. Gott testified that Dalton ultimately did not put on the protective vest.
A Baker employee, Dhani Conrad (“Conrad”), prepared a handwritten
statement that Gott offered as corroboration of the vest incident. Conrad’s
handwritten statement provides, in pertinent part, that “[Gott] asked [Metcalf] to
tell Dalton to get his vest on and [Metcalf] just shrugged his shoulders as the pour
continued[.] Dalton walked up to [Metcalf] and they briefly talked about it. At that
point I heard [Metcalf] say, ‘Don’t worry about that spic.’ I turned and looked briefly
but did not say anything.” Gott testified that he observed Conrad write the
statement. The statement is unsigned, and Conrad was not deposed in this matter.
On the afternoon of December 21, 2023, Gott verbally complained
about Metcalf’s conduct to Doherty and to Baker’s field safety representative II,
Jovan Edmond (“Edmond”). On December 22, 2023, Gott filed a written
harassment complaint with Baker’s human resources department. Baker human
resources representative Tonya Beesley (“Beesley”) documented that complaint,
which stated that Metcalf had called Gott a “spic” on several occasions; that Gott
identified his ancestry as Puerto Rican, Mexican, and German; and that Metcalf had
allegedly engaged in similar conduct during the preceding three weeks. Gott also informed Beesley that Metcalf had called him names at the prior project and that,
after Gott had involved a business agent at that project, he was laid off the following
day by Capone.
Baker initiated an investigation into Gott’s complaint. The day after
Gott’s complaint, Baker separated Gott and Metcalf to prevent further interaction.
Gott confirmed in his deposition that he had no further contact with Metcalf after
he submitted his complaint and that the two men did not work together again. On
December 22, 2023, Beesley interviewed Gott, who identified Wozny as a potential
witness. Union steward Todd Fonseca (“Fonseca”) interviewed Wozny, who
reported that he had not witnessed Metcalf use any racial slurs or make
inappropriate remarks toward Gott. On December 23, 2023, Beesley interviewed
Metcalf, who denied using any slurs or making inappropriate comments toward Gott
and noted his prior strained history with Gott. Baker concluded that, based on the
information then gathered, Gott’s complaint could not be substantiated, although
Baker maintained that the investigation remained ongoing. Baker did not interview
Conrad, the author of the handwritten witness statement. Metcalf was not
disciplined or subjected to corrective action.
On Tuesday, December 26, 2023, Gott returned to the SherwinWilliams jobsite. Gott testified that, instead of resuming his usual concrete pour
foreman duties, Doherty informed him that Metcalf “wanted [Gott] to sit home, but
[Doherty] decided to put [Gott] on gate duty.” Gate duty at the Sherwin-Williams
jobsite involved controlling access to the project, opening and closing the gate for incoming trucks, and preventing pedestrian access. Because of the jobsite’s location
adjacent to Public Square in downtown Cleveland, Sherwin-Williams required
Baker to station a worker at the entrance to perform these functions.
Doherty assigned Gott to assist with gate duty on December 26, 27,
28, and 29, 2023, and again on January 3, 2024. Gott testified that he had never
been assigned to gate duty before. Gott also testified that, although gate duty was
“just one thing out of the whole day,” he understood the reassignment as a demotion
that signaled to others on the jobsite that he was no longer the foreman of the
concrete crew. Gott testified that the reassignment “embarrassed me, made me
humiliated” and that “everybody on the job that walked by me knew . . . I just got
reassigned because I was the boss.”
Metcalf and Doherty both testified that all Baker employees at the
Sherwin-Williams project, including members of the concrete crew and Metcalf
himself, were routinely assigned to gate duty on a rotating basis, particularly on days
when no concrete pour was occurring. Doherty testified that he regularly rotated
employees through gate duty to ensure consistent coverage, explaining that
“construction changes by the minute” and staffing had to remain flexible. Doherty
testified that gate duty fell within the job description of a laborer foreman, which
itself indicated that the listed duties were not exhaustive. Gott confirmed in his
deposition that no one at Baker ever told him that his position was being
permanently changed to gate duty. Gott further testified that he did not know who
had assigned him to gate duty and that he had not spoken with Metcalf about it.
By late December 2023 and early January 2024, the concrete work at
the Sherwin-Williams project was substantially complete and Baker had begun
laying off employees. Gott acknowledged in his deposition that most of the concrete
had been poured by that time and that layoffs were occurring. On Friday,
January 5, 2024, Doherty assigned Gott to pour concrete and Gott performed that
work as he had previously. January 5, 2024, was the last day Gott reported to work
at Baker. Gott did not return to work the following Monday, January 8, 2024, and
instead began employment with a new employer that same day, with no gap in
employment. Gott testified that no one at Baker told him not to return to work.
Throughout his employment with Baker, Gott was never demoted, never received a
reduction in pay or benefits, and was never disciplined.
On December 17, 2024, Gott filed a complaint in the Cuyahoga
County Court of Common Pleas asserting two causes of action against Baker:
(1) hostile work environment based on race in violation of R.C. 4112.02(A); and
(2) retaliation in violation of R.C. 4112.02(I). Gott’s complaint did not allege
constructive discharge.
On July 28, 2025, after the close of discovery, Baker filed a motion for
summary judgment seeking dismissal of both claims. Gott filed a brief in opposition
on September 8, 2025. Baker filed a reply brief in support on September 15, 2025.
On November 7, 2025, the trial court issued a four-page journal entry
granting Baker’s motion for summary judgment in full and dismissing all of Gott’s
claims with prejudice. With respect to the hostile work environment claim, the trial court accepted Gott’s allegations as true for purposes of summary judgment and
concluded that the alleged use of a racial epithet four to five times over a two-day
period was not sufficiently severe or pervasive as a matter of law to alter the terms,
conditions, or privileges of Gott’s employment. The trial court relied on
Montgomery v. ExchangeBase, L.L.C., 2024-Ohio-2585 (8th Dist.); Chapa v.
Genpak, L.L.C., 2014-Ohio-897 (10th Dist.); and Amini v. Rite Aid Corp., 819
Fed.Appx. 344 (6th Cir. 2020).
With respect to Gott’s retaliation claim, the trial court concluded that
the first two elements of a prima facie case, protected activity and the employer’s
knowledge of that activity, were not in dispute. The trial court determined, however,
that Gott’s temporary assignment to gate duty for five working days did not
constitute an adverse employment action as a matter of law. The trial court
emphasized that Gott was not terminated, was not demoted, did not suffer a loss in
wages or benefits, and retained his title of laborer foreman and that gate duty fell
within his written job description. The trial court further observed that Gott
resumed concrete pouring on January 5, 2024, and that Gott himself identified
humiliation and embarrassment as the only effects of the reassignment. Relying on
Ingram v. Glavin, 2023-Ohio-1290 (8th Dist.), the trial court held that “a bruised
ego,” without a change in pay, benefits, or duties, cannot constitute an adverse
employment action for retaliation purposes. The trial court accordingly entered
judgment in Baker’s favor on both claims and assessed costs against Gott.
Gott timely filed a notice of appeal from the trial court’s November 7,
2025 judgment. Gott raises two assignments of error for our review:
1. The trial court erred in granting Baker summary judgment on Gott’s
hostile work environment claim because the record establishes that the
workplace harassment was severe and pervasive; and
2. The trial court erred in granting Baker summary judgment on Gott’s
retaliation claim because the record establishes that Gott suffered an
adverse employment action causally connected to his protected
activity.
II. Summary Judgment
In Gott’s first assignment of error, he argues that the trial court erred
in granting summary judgment on his hostile work environment claim because the
record demonstrates that the racial harassment he endured was sufficiently severe
or pervasive to alter the terms and conditions of his employment.
A. Summary Judgment
An appellate court reviews a trial court’s grant of summary judgment
de novo. Montgomery, 2024-Ohio-2585, at ¶ 47 (8th Dist.); Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105 (1996). Under this standard, the reviewing court
conducts an independent review of the record and affords no deference to the trial
court’s determination. Blagg v. S.T.O.F.F.E. Fed. Credit Union, 2024-Ohio-2579,
¶ 47 (8th Dist.).
Summary judgment is appropriate when there is no genuine issue as
to any material fact, the moving party is entitled to judgment as a matter of law, and,
construing the evidence most strongly in favor of the nonmoving party, reasonable
minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Montgomery at ¶ 48. The party moving for
summary judgment bears the initial burden of demonstrating that no genuine issue
of material fact exists. Once the moving party satisfies that burden, the nonmoving
party may not rest upon the mere allegations of the pleadings but must set forth
specific facts demonstrating a genuine issue for trial. Id.
B. Law and Analysis
R.C. 4112.02(A) makes it an unlawful discriminatory practice for an
employer, because of an employee’s race, to discriminate against that person with
respect to the terms, conditions, or privileges of employment. To establish a prima
facie case of racially hostile work environment, a plaintiff must demonstrate that
(1) the harassment was unwelcome; (2) the harassment was based on race; (3) the
harassing conduct was sufficiently severe or pervasive to affect the terms,
conditions, or privileges of employment, or any matter directly or indirectly related
to employment; and (4) either the harassment was committed by a supervisor, or
the employer, through its agents or supervisory personnel, knew or should have
known of the harassment and failed to take immediate and appropriate corrective
action. Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169 (2000),
paragraph two of the syllabus.
Our review of the record reveals that Baker hired Metcalf as a highranking supervisor over Gott in July 2023. Although Metcalf was not Gott’s direct
supervisor, he was in a supervisory role as a concrete superintendent and that Gott
was subjected to his authority and directives. Gott identified his ancestry as Puerto Rican, Mexican, and German. Gott revealed that Metcalf called him a “spic” on more
than one occasion and, after learning of his ancestry, called him a “German spic.”
Metcalf also undermined Gott’s authority when Gott directed a subordinate to put
on a safety vest and Metcalf stated, “don’t worry about that spic.” Per Gott, these
interactions caused him to feel dejected and humiliated. We determine that Gott
did not welcome the harassment from his supervisor, which was based on his race,
and that three of four elements to establish a prima facie case of racially hostile work
environment were met. With respect to the hostile work environment claim, the
trial court accepted Gott’s allegations as true for purposes of summary judgment and
concluded that the alleged use of a racial epithet four to five times over a two-day
period was not sufficiently severe or pervasive as a matter of law to alter the terms,
conditions, or privileges of Gott’s employment.
Because our review is de novo, we owe no deference to the trial court’s
legal conclusion and we may affirm summary judgment on any ground the record
supports. See Chapa v. Genpak, L.L.C., 2014-Ohio-897, at ¶ 27 (10th Dist.). From
our review, supra, three of the four elements of R.C. 4112.02(A)(2) have been met.
Baker moved for summary judgment on the hostile work environment claim on the
third element alone, whether the harassing conduct was severe or pervasive. We
also address that element de novo.
In assessing whether conduct is sufficiently severe or pervasive, a
court must consider the totality of the circumstances. Hampel, 89 Ohio St.3d at 180.
The relevant circumstances include 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. The conduct must be both objectively and subjectively offensive,
such that a reasonable person would find the environment hostile or abusive and
the victim in fact perceived it to be so. Id. See also Farris v. Port Clinton City School
Dist., 2006-Ohio-1864, ¶ 49 (6th Dist.).
To succeed on a cause of action for a hostile work environment
created by racial harassment, Goff must demonstrate that he is a member of a
protected class; the harassment was unwelcome; the harassment was based on race;
the harassment had the effect or purpose of unreasonably interfering with the
employee’s work performance or of creating an intimidating, hostile, or offensive
work environment; and his employer is liable through respondeat superior. Croley
v. JDM Servs., L.L.C., 2025-Ohio-4762, ¶ 20 (10th Dist.), citing Hinton v. Ohio
Dept. of Youth Servs., 2022-Ohio-4783, ¶ 33 (10th Dist.).
The record viewed in the light most favorable to Gott reflected the
following. Gott, who identified his ancestry as Puerto Rican, Mexican, and German,
worked as a concrete pour foreman supervising a crew of six to eight laborers at
Baker’s Sherwin-Williams jobsite. Metcalf, the concrete superintendent and general
foreman, occupied a supervisory role over Gott.
Gott testified that on December 20, 2023, while Gott was discussing
his ancestry on the jobsite, Metcalf said to him, “Oh, so you’re a German spic,” and
then laughed about it. When Metcalf’s son arrived at the site, Metcalf repeated the slur to his son as a joke. The following day, December 21, 2023, in the presence of
fellow supervisor Wozny, Metcalf again invoked the slur, exclaiming, “What did I
call you yesterday? Oh wait, I remember, ‘a German spic.’” Later that same day,
when Gott directed laborer Dalton to put on his safety vest, Metcalf intervened in
front of the assembled concrete crew and told Dalton, “Don’t worry about that spic.”
Conrad provided a contemporaneous handwritten statement corroborating that
exchange.
Gott testified that Metcalf’s conduct caused him humiliation and
embarrassment in front of the crew he supervised and that the slurs lowered his selfesteem and undermined his authority on the jobsite. He explained that being called
a “spic” as a person of Puerto Rican descent was, in his view, the equivalent of calling
a Black person the “N” word. Gott also testified that Metcalf had directed similar
slurs at him at a prior employer where the two had worked together, although that
earlier conduct is not actionable against Baker.
In assessing whether conduct is sufficiently severe or pervasive, a
court must consider the totality of the circumstances. Hampel, 89 Ohio St.3d at 180.
The relevant circumstances “‘include 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 Harris v. Forklift Sys., 510 U.S 17, 23 (1993). The
conduct must be both objectively and subjectively offensive, such that a reasonable person would find the environment hostile or abusive and the victim in fact
perceived it to be so. Id.
We disagree that summary judgment was warranted on this record.
The severe or pervasive inquiry is not a tallying exercise; the two prongs are
disjunctive, and a deficiency in frequency can be compensated by the severity of the
conduct. Montgomery, 2024-Ohio-2585, at ¶ 61 (8th Dist.). Courts considering
racial slurs at the most virulent end of the spectrum, such as the “N” word, have
recognized that such terms carry a unique and severe stigmatic force that mere
offensive utterances do not. Gott’s testimony, viewed in the light most favorable to
him, was not limited to four to five isolated comments. He testified that Metcalf
“called [Gott] names from August [of 2023] up until” December 21, 2023, and that
Metcalf’s harassment of him became “increasingly brash, aggressive, and malicious”
over time. His December 22, 2023 written complaint to Baker’s human resources
department, likewise reported that the slur had been used over a three-week period.
The trial court’s framing of the record as confined to a two-day
episode therefore did not credit Gott’s testimony in the light most favorable to him.
Under the totality-of-the-circumstances test, a factfinder evaluating this record
would have to consider that the slurs were uttered by Gott’s supervisor; that they
were uttered in the presence of the laborers Gott was responsible for supervising and
in the presence of another Baker supervisor; that one use of the slur was directly tied
to a workplace safety directive Gott gave, with the result that Gott’s authority was
openly undermined when the laborer was permitted to disregard the safety instruction; and that Gott testified the conduct humiliated him and impaired his
ability to lead his crew. These are precisely the considerations that the severity
inquiry directs a factfinder to weigh. Id. at ¶ 62-63.
The fact that the harasser was Gott’s supervisor and that the slurs
were deployed in front of subordinates whose respect Gott needed in order to do his
job is significant. A racial slur uttered by a supervisor in the presence of the harassed
employee’s subordinates is qualitatively different from the same word exchanged
between coworkers out of earshot of others because it operates not only as an insult
but as a public diminishment of the employee’s authority and standing in the
workplace. See Croley, 2025-Ohio-4762, at ¶ 28 (10th Dist.) (collecting cases
holding that a supervisor’s use of a racial slur, even on one or two occasions, may be
severe enough to support a hostile work environment claim); see also Torres v.
Pisano, 116 F.3d 625, 632-633 (2d Cir. 1997). Here, the slurs were uttered not only
by a supervisor but in the presence of the laborers Gott was responsible for
supervising. Gott’s testimony that Metcalf’s conduct made it “look like [Gott had]
no authority,” and that the crew he had trained from the ground up witnessed the
slurs, raised a triable question whether the harassment unreasonably interfered
with his work performance. Tr. 49. Viewed most favorably to Gott, this evidence
raised a triable question whether the harassment unreasonably interfered with his
work performance. Tr. 100-101.
The independent corroboration of the December 21, 2023 vest
incident by coworker Conrad’s contemporaneous handwritten statement further distinguishes this case from one in which the record is confined to the plaintiff’s bare
assertions. Although Baker disputed the admissibility of that statement, on
summary judgment the record must be construed in favor of the nonmoving party
and Gott authenticated his observation of Conrad writing the statement at the time
of the incident.
On this record, reasonable minds could differ as to whether Metcalf’s
conduct, evaluated in its full context and as part of a course of conduct that Gott
testified extended over a period of months and culminated in the December 2023
incidents, was sufficiently severe or pervasive to alter the conditions of Gott’s
employment. The question whether harassment is severe or pervasive is generally
a question of fact for the jury, and summary disposition is appropriate only where
the evidence, even when viewed most favorably to the plaintiff, could not support a
finding in his favor. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th
Cir. 2008) (whether harassing conduct is sufficiently severe or pervasive is
“quintessentially a question of fact”), quoting Jordan v. Cleveland, 464 F.3d 584,
597 (6th Cir. 2006). On this record, that threshold against the plaintiff was not met.
Indeed, a single incident may create a hostile work environment
where the conduct is sufficiently severe. Croley, 2025-Ohio-4762, at ¶ 27 (10th
Dist.). To say that a single incident rarely creates a hostile work environment is not
to say that it never can. Id. at ¶ 28. As the Tenth District recognized in Croley,
several federal courts of appeals have held that a supervisor’s use of a racial slur,
even on one or two occasions, can be severe enough to support a hostile work environment claim. Id., citing Woods v. Cantrall, 29 F.4th 284, 285 (5th Cir. 2022);
Castleberry v. STI Group, 863 F.3d 259, 264-265 (3d Cir. 2017); and Boyer-Liberto
v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (a reasonable jury could
find that a supervisor’s two uses of a racial epithet, whether viewed as a single
incident or as a pair of discrete instances, were severe enough to engender a hostile
work environment). Because Ohio courts treat federal case law interpreting Title
VII as generally applicable to claims under R.C. Ch. 4112, this authority is instructive
here. See Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610 (1991).
Accordingly, we determine that the trial court erred in granting
summary judgment to Baker on Gott’s hostile work environment claim under
R.C. 4112.02(A).
Therefore, appellant’s first assignment of error is sustained.
In his second assignment of error, Gott contends that the trial court
erred in granting summary judgment to Baker on his retaliation claim under
R.C. 4112.02(I). Gott argues that he engaged in protected activity when he
complained to Baker’s human resources department about Metcalf’s race-based
harassment and that Baker retaliated against him by reassigning him to gate duty
just days later.
R.C. 4112.02(I) prohibits any person from discriminating in any
manner against any other person because that person has opposed any unlawful discriminatory practice or because that person has made a charge, testified, assisted,
or participated in any investigation, proceeding, or hearing under R.C. Ch. 4112.
To establish a prima facie case of retaliation, a plaintiff must
demonstrate that (1) the plaintiff engaged in a protected activity, (2) the employer
knew of the plaintiff’s participation in the protected activity, (3) the employer took
an adverse employment action against the plaintiff, and (4) a causal connection
existed between the protected activity and the adverse employment action. Ingram,
2023-Ohio-1290, at ¶ 47 (8th Dist.).
Baker did not dispute, for purposes of summary judgment, that Gott
engaged in protected activity when he reported Metcalf’s alleged use of a racial slur
to Baker’s human resources department on December 22, 2023, or that Baker knew
of that complaint. The dispositive question on appeal is whether Gott produced
evidence from which a reasonable jury could find that he suffered an adverse
employment action.
The record demonstrated that after Gott submitted his harassment
complaint, he returned to the Sherwin-Williams jobsite on December 26, 2023, and
was assigned to gate duty. Gott testified that gate duty involved directing concrete
trucks from the street and that he had not previously been assigned to perform that
task at this jobsite. He further testified that the assignment embarrassed and
humiliated him because the laborers he had previously supervised observed that he
was no longer running the concrete crew.
The record established, however, that gate duty fell squarely within
the written job description for Gott’s position as a Laborer Foreman. Gott’s general
foreman, Doherty, testified that gate duty was a routine assignment performed by
nearly every employee at the Sherwin-Williams jobsite, including members of the
concrete pour team and Metcalf himself, particularly on days when no concrete pour
was scheduled. Doherty further testified that he rotated employees through gate
duty to ensure consistent coverage and that staffing at the jobsite necessarily
remained flexible because “construction changes by the minute.”
Critically, Gott himself confirmed that the gate-duty assignment was
neither permanent nor exclusive. When asked whether anyone at Baker had told
him that his job was being permanently changed to gate duty, Gott answered: “That’s
just one thing out of the whole day. So, no.” The record further showed that Gott
was assigned to gate duty on only a handful of days at the end of December 2023
and on January 3, 2024, and that on his final day of work, January 5, 2024, he was
again assigned to pour concrete and did so as usual. The undisputed record reflected
that Gott’s wages, benefits, title, and position as Laborer Foreman remained
unchanged throughout this period.
The record also reflected the operational context of the assignment.
By late December 2023, the concrete work at the Sherwin-Williams project was
substantially complete, layoffs had already begun, and Gott himself acknowledged
that he understood most of the concrete had been poured and that layoffs were occurring. Doherty testified that he assigned Gott to gate duty in part to keep him
working at the site as concrete work wound down.
Measured against the standard set out in Blagg, 2024-Ohio-2579
(8th Dist.), and Ingram, we find the evidence in the record was insufficient to permit
a reasonable jury to find that Gott suffered a materially adverse employment action.
Gott retained his title, his rate of pay, his benefits, and his position as Laborer
Foreman. The complaint-of assignment was a task expressly contemplated by his
written job description, was routinely rotated among other employees, including
supervisors, and occupied only a portion of his workday on a limited number of days
before he was returned to concrete work on January 5, 2024. See Ingram, 2023-Ohio-1290, at ¶ 50 (8th Dist.) (reassignment involving only minor changes in
working conditions does not amount to an adverse employment action).
Gott’s testimony that the assignment embarrassed and humiliated
him in front of laborers he had previously supervised, although understandable
from his perspective, does not by itself transform a temporary, in-description task
rotation into a materially adverse employment action under R.C. 4112.02(I).
Subjective feelings of embarrassment or loss of prestige, unaccompanied by any
change in pay, benefits, title, or material job responsibilities, are insufficient under
Ingram to satisfy the third element of a prima facie retaliation claim. Id.
An adverse employment action in the retaliation context is one that a
reasonable employee would have found materially adverse, meaning that it well
might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Blagg at ¶ 75. A reassignment of duties involving only minor
changes in working conditions does not amount to an adverse employment action.
Ingram at ¶ 50. Petty slights, minor annoyances, and a simple lack of good manners
do not rise to the level of materially adverse conduct.
Because Gott failed to produce evidence from which a reasonable jury
could find that he suffered an adverse employment action, we find he could not
establish a prima facie case of retaliation under R.C. 4112.02(I) and the trial court
did not err in granting summary judgment in favor of Baker on that claim.
Therefore, appellant’s second assignment of error is overruled.
Judgment affirmed in part, reversed in part, and remanded.
It is ordered that the parties split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing 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.
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR