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Steppe v. Kmart Stores11/18/1999
(4) that the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in tangible job detriment; and (5) the existence of respondeat superior liability. See Madera v. Satellite Shelters, Inc. (Aug. 12, 1998), Cuyahoga App. No. 73172, unreported.
However, respondeat superior liability for the acts of an employee acting outside the scope of employment will only attach where the employer has the ability and knowledge to control the employee. Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486.
Although it has been shown that on or about April 20, 1995 appellant Carolyn Steppe was subjected to sexual harassment in the workplace by James Workman, it is undisputed that James Workman was not a supervisor of Carolyn Steppe. No evidence was presented to show that Ms. Steppe's submission to appellant's unwelcomed advances was an express or implied condition for receiving job benefits or that her refusal to submit to these advances would result in a tangible job benefit. No evidence was presented that Kmart, the employer, was aware of the unwelcome advances of its employee until approximately six weeks after the incident occurred. No evidence was presented to demonstrate that Kmart either knew or should have known that its employee James Workman would perform a criminal act. No evidence was presented to show that James Workman posed a threat of harm to his fellow employees prior to his assault of Carolyn. Thus, we find sufficient evidence was not presented to support a claim of intentional harassment in the workplace and the trial court properly directed the verdict on Carolyn Steppe's claim of intentional sexual harassment in the workplace.
Moreover, in order to recover punitive damages a plaintiff must demonstrate that the defendant was motivated by malice. Preston v. Murty (1987), 32 Ohio St.3d 334. Malice is defined as the state of mind under which a person's conduct is characterized by hatred, ill will, or a spirit of revenge or conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. Id. at 336. No evidence was presented at trial that Kmart acted with hatred, ill will or a spirit of revenge. Further, because there is no evidence in the record that Kmart either knew or should have known that James Workman posed a danger to its employees prior to his assault on Carolyn Steppe, it cannot be said that Kmart held such a conscious disregard for Carolyn Steppe's safety that it permitted a situation that had a great probability of causing substantial harm. Thus, there was insufficient evidence presented to support Carolyn Steppe's claim for punitive damages against Kmart. The trial court properly directed the verdict in favor of Kmart on Carolyn Steppe's claim for punitive damages. Accordingly, we find appellant Carolyn Steppe's first assignment of error is not well- taken.
We next consider together Kmart's first and second assigned error in its cross-appeal because we find our determination to be dispositive of the remaining issues in this appeal. In its first assigned error, Kmart asserts that the trial court erred when it denied its motion for directed verdict. In its second assigned error, Kmart contends that the trial court erred when it denied its motion for judgment n.o.v. asserting insufficient evidence was presented to support the verdict which found that Kmart negligently hired, supervised and retained its employee, James Workman.
The applicable standard of review to appellate challenges to the overruling of motions for judgment notwithstanding the verdict is
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