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Schmitz v. Bob Evans Farms5/12/1997
NAHRA, Presiding Judge.
Appellant, Kevin M. Schmitz, appeals the grant of summary judgment to appellees, Jaymz Keller and Bob Evans Farms, Inc. ("BEF"). For the following reasons, we affirm the grant of summary judgment.
In July 1994, Schmitz and Keller worked at BEF's Elyria restaurant. Keller was a second assistant manager at the restaurant, Schmitz, who was a minor at the time, worked as a busser. Keller is homosexual; Schmitz is heterosexual. Both Keller and Schmitz are male.
On July 28, 1994, Schmitz and Keller worked late into the night. Schmitz testified on deposition that as the two worked, Keller discussed his homosexual lifestyle with Schmitz. Later, according to appellant, Keller commented that he liked Schmitz's hair. Appellant alleged that as the night wore on he requested a schedule change from Keller. Keller allegedly told Schmitz that he might "have to do something for it."
After completing the work, Keller drove Schmitz home. Appellant testified that during the ride to his parents' house, Keller revealed his fear about violence directed at homosexuals. Allegedly, Keller told Schmitz how attractive he thought that he was. According to appellant, Keller then made references to performing fellatio on him, asked him if he had ever measured his penis, and told him not to tell anyone what he had said. The remainder of the drive to Schmitz's house was without further incident.
The following day, appellant brought these allegations to the attention of the BEF area director, Tom O'Donnell. Keller subsequently resigned. Appellant filed a three-count complaint against both Keller and BEF, alleging quid pro quo sexual harassment in violation of R.C. 4112.02. Upon motion by both defendants, the trial court granted summary judgment, Schmitz appeals and asserts two assignments of error.
Appellant's first assignment of error states:
"The trial court erred by concluding that plaintiff-appellant did not present a prima facie case of quid pro quo sexual harassment by defendant-appellee Jaymz Keller and in granting the motions for summary judgment of defendant-appellees Jaymz Keller and Bob Evans Farms, Inc."
This court reviews de novo a trial court's grant of summary judgment. Palmieri v. Deaconess Hosp. (June 13 1996), Cuyahoga App. No. 70067, unreported, 1996 WL 325324.
"Civ.R. 56(C) provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." LaCava v. Walton (June 13, 1996). Cuyahoga App. No. 69190, unreported, 1996 WL 325274.
The movant must demonstrate that no genuine issue of material fact remains requiring trial. Palmieri, supra. A factual dispute is material if it can affect the outcome of the trial. Needham v. The Provident Bank (1996), 110 Ohio App.3d 817, 675 N.E.2d 514, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L. Ed.2d 202, 211-212. A factual dispute is genuine where reasonable minds could return a verdict in favor of the nonmoving party. Id.
Upon motion for summary judgment, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E
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