Jayne Knox v. Neaton Auto Products Manufacturing, Inc.

*The Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0218P (6th Cir.)
File Name: 04a0218p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAYNE KNOX,
Plaintiff-Appellant,
v.
NEATON AUTO PRODUCTS
MANUFACTURING, INC.,
Defendant-Appellee.
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No. 03-3075
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 00-00345—Thomas M. Rose, District Judge.
Argued: April 28, 2004
Decided and Filed: July 9, 2004
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
Judge.*
2 Knox v. Neaton Auto Products Mfg. No. 03-3075
_________________
COUNSEL
ARGUED: F. Harrison Green, Cincinnati, Ohio, for
Appellant. Robert A. Harris, VORYS, SATER, SEYMOUR
& PEASE, Columbus, Ohio, for Appellee. ON BRIEF: F.
Harrison Green, Cincinnati, Ohio, for Appellant. Robert A.
Harris, Michael F. O’Brien, VORYS, SATER, SEYMOUR
& PEASE, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
JUDITH M. BARZILAY, Judge. Plaintiff-Appellant Jayne
Knox appeals from a judgment of the district court granting
summary judgment to Defendant-Appellee Neaton Auto
Products Manufacturing Inc., on her gender discrimination,
sexual harassment, wrongful discharge, and defamation
claims. For the reasons set forth below, we affirm the grant
of summary judgment on all claims.
I. BACKGROUND
Knox went to work for Neaton Auto Products
Manufacturing, Inc. in July 1985 as a material handler. This
position carried various responsibilities, including operating
a forklift to bring and remove large containers known as
“ropacs” to and from different production lines. During her
first three and one-half years, Knox worked under a
supervisor named Tony Matlock in the shipping department.
Knox and Matlock did not get along well, and Matlock often
delegated difficult tasks to Knox, asking her to do things he
knew she could not. She also alleges that he repeatedly stated
that he did not want women working for him. Knox
eventually asked to be transferred to a different shift, and was
thereafter moved to a different material handling position.

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No. 03-3075 Knox v. Neaton Auto Products Mfg. 3
After she transferred from under his supervision, Matlock told
Knox that “if [she] ever went to work for him again, [she’d]
be gone.” J.A. at 515 (Knox Dep.).
During the next ten years Knox did not work directly under
Matlock. He did, however, “write her up” for an incident
where she replaced a fallen fire extinguisher but failed to
report that it had been down, as per company policy. In 1999,
Matlock was put in charge of the material handlers, assuming
authority over Knox’s supervisors and therefore once again
over Knox. Shortly thereafter, Knox was named group leader
for material handlers on the second shift – a pseudo-
supervisory position that involved some direction of other
employees in the absence of a supervisor.
On August 3, 1999, Knox was involved in a verbal
exchange with a Neaton supervisor, Henry Wright. Knox
went to see Wright to obtain keys to a locked area in order to
retrieve a hose for some maintenance workers. After she was
repeatedly told by Wright that she would not be able to obtain
the hose, she told Wright to “forget it,” and that she “was
trying to do the Christian thing.” J.A. at 521-522 (Knox
Dep.). Knox immediately reported the incident to Neaton’s
Human Resources Department, verbally stating that
something needed to be done “before everything blew up.”
Wright also reported the incident in two separate memoranda
submitted to Human Resources. In the first memorandum,
dated August 3, 1999, Wright stated that Knox made the
comments: “You are not my supervisor;” “You don’t give out
my work assignments;” and “It’s none of your business why
I need a hose.” J.A. at 699 (Pl.’s Ex. A). In the second
memorandum, dated three days later, Wright stated that Knox
said something to the effect of “That is not the way a
Christian should act. And you are becoming more of a devil’s
advocate every day.” J.A. at 700 (Pl.’s Ex. B). Knox also
indicates that she was told by a fellow employee that another
employee, a shipping associate, had overheard Matlock telling
Wright that he had to do something about the hose incident,
and that he (Matlock) wasn’t going to let it drop. Carol
4 Knox v. Neaton Auto Products Mfg. No. 03-3075
Necessary, a member of Neaton’s Human Resources
Department, investigated the incident. As a result of this
incident, a meeting was called between Knox, her supervisor
Ken Messer, Messer’s supervisor Matlock, and Necessary. At
this meeting Knox was informed that her behavior toward
Wright was deemed insubordinate and that she was being
suspended for three days without pay, removed from her
position as group leader, and placed on probation for six
months. Regarding this probationary period, Knox was
notified in writing that “[d]uring this time any violation of a
Neaton rule or policy will result in immediate termination.”
J.A. at 115 (Def.’s Ex. D). Kevin Freck, another Neaton
employee, replaced Knox as group leader of the second shift
and she was eventually transferred to the first shift.
Before she was transferred to the first shift, on
September 16, 1999, Knox was involved in an incident that
violated her probation and led directly to her termination. As
part of her responsibilities, Knox was in charge of removing
full ropac containers from the production line, where they
were being filled with finished product, and bringing empty
ones back to the line. Supplying the production lines with
empty ropacs is a primary objective of the material handler
position because when a production line is not provided with
empty ropacs, it is forced to shut down. A few hours into her
shift, Knox noticed that the line employees were filling up
their last empty ropac, but despite this observation, Knox
drove by on her forklift three times without delivering any
empty ropacs. Knox claims that the ropac being filled could
not be removed because it had not yet been quality inspected.
Then, rather than delivering empty ropacs herself, she told
another material handler of the situation and requested that
this other handler deliver empty ropacs to the line. Neaton
investigated the incident after the fact and determined that
because of Knox’s failure to deliver empty ropacs, the
production line had shut down. On September 23, 1999,
Knox was called to a meeting with the management team for
her position, which included David Dunfee, Ken Messer,
Tony Matlock, and Carol Necessary. At the meeting, Knox

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No. 03-3075 Knox v. Neaton Auto Products Mfg. 5
was informed that she was being discharged because of her
unsatisfactory performance on September 16 – a violation of
the conditions of her probation. Knox was then replaced by
Teresa Pressel, a female Neaton employee. J.A. at 527.
Knox also claims that while she was employed by Neaton
a number of male employees were treated more leniently than
she was. She describes several situations where male
employees used abusive language and refused instructions
from their supervisors but were never disciplined.
Furthermore, Knox claims that male probationary employees
were also treated more leniently. Specifically, she alleges in
an Equal Employment Opportunity Commission
questionnaire that “[n]ear September 30, 1999, Mike
O’Connor of the Die Cast Department was on a six month
disciplinary probation . . . when he got into a fight with
another employee . . . and only received five days
suspension.” J.A. at 135-136. She also alleges that “[o]n
October 5, 1999, Bart Lanhart, Rim Room employee, was on
a six month disciplinary probation . . . He broke company
policy rule [sic] of leaving company property during working
hours without checking out . . . He was not fired for this
incident . . .” J.A. at 135-136. These claims are not
elaborated upon or substantiated anywhere in the record of
this case.
Finally, Knox claims that while she was employed by
Neaton, another employee named Greg Schaffer made a
number of sexually oriented remarks in her presence. On
many occasions, Schaffer would comment about female
Neaton employees, “[w]hat he would like to do to them and
their chests, their build, making them sweat.” J.A. at 70-72,
575 (Knox Dep.). Schaffer would also comment on “[h]ow
he likes to watch them walk away from him as well as
towards him.” Id. Furthermore, Knox claims that Schaffer
and other Neaton employees she worked with often used the
“f-word” and took the Lord’s name in vain. J.A. at 69-71.
Knox does not allege that these comments were directed at
her, and she also admits they were often made in a group
6 Knox v. Neaton Auto Products Mfg. No. 03-3075
setting. Knox asked Schaffer to stop and complained of this
behavior to her superiors, but it never ceased.
II. ANALYSIS
A. Standard of Review
A grant of summary judgment is reviewed de novo.
Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 629
(6th Cir. 2002). Summary judgment is proper where there
exists no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c). In considering a motion for summary judgment, the
district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The
central issue is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L.
Ed. 2d 202, 106 S. Ct. 2505 (1986).
B. Gender discrimination under Title VII and Ohio state
law
In order to establish a prima facie case of gender
discrimination under Title VII, Knox must show that (1) she
was a member of a protected class; (2) she suffered an
adverse employment action; (3) she was qualified for the
position; and (4) she was treated differently from similarly
situated members of the unprotected class. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668,
93 S. Ct. 1817 (1973); Hoskins v. Oakland County Sheriff’s
Dept., 227 F.3d 719, 731 (6th Cir. 2000) (citing Warfield v.
Lebanon Correctional Inst., 181 F.3d 723, 728-29 (6th Cir.
1999)). Because the prima facie case requirements are
essentially the same under the Ohio Revised Code § 4112.02,
see Ohio Civil Rights Comm'n v. David Richard Ingram,

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No. 03-3075 Knox v. Neaton Auto Products Mfg. 7
D.C., Inc., 69 Ohio St. 3d 89, 630 N.E.2d 669, 672 (Ohio
1994), Knox's federal and state-law claims of gender
discrimination may be disposed of together.
The district court properly determined that Knox failed to
establish a prima facie case for several reasons. First, it
correctly determined that because Matlock’s statements about
not wanting women working for him and about Knox “being
gone” if she were ever to work for him again were made ten
years prior to Knox’s termination, they were not sufficiently
close in time to the allegedly discriminatory action. Second,
neither the incidents where Matlock made Knox perform
tasks that she couldn’t handle, nor where Matlock wrote her
up for failing to report a fallen fire extinguisher, have been
linked in any way to sex-based discrimination – as opposed
to sex-neutral animus between Knox and Matlock. Third,
Knox’s allegation that one Neaton employee told yet another
that the employee had overheard, in the break room, Matlock
telling Wright that he had to do something about the hose
incident, and that he wasn’t going to let it drop, constitutes
inadmissible hearsay within hearsay and cannot be used to
support Knox’s claim that Matlock’s statement had not
become stale. See FED. R. CIV. P. 56(e); Moore v. Holbrook,
2 F.3d 697, 699 (6th Cir. 1993) (A court cannot rely on
unsworn inadmissible hearsay when ruling on a summary
judgment motion).
Finally, we turn to the district court’s analysis of the fourth
prong of the McDonnell Douglas burden-shifting analysis,
which requires a plaintiff to demonstrate either that she was
replaced by someone outside the protected class or that she
was treated differently from similarly situated members of the
unprotected class. See Hoskins v. Oakland County Sheriff’s
Dept., 227 F.3d 719, 731 (6th Cir. 2000). The district court
held that although Knox was replaced as team leader by
Kevin Freck after being demoted, suspended, and placed on
probation, Knox had not asserted that being stripped of the
“pseudo-supervisory” designation as group leader was a
demotion in any meaningful sense. Knox claims on appeal
8 Knox v. Neaton Auto Products Mfg. No. 03-3075
1Knox was informed that: “On August 4, 1999 an incident occurred
where you used abusive language with another Neaton A ssociate. . . .
During this incident you also refused to cooperate with a legitimate
request from a [Neaton] supervisor. . . . This is a violation of Neaton
Associate Stand ards o f Cond uct . . . You are removed from your group
leade r’s position as a result of this violation.” J.A. at 116 (Def.’s Ex. D).
2In support of the proposition that tem porally remote comments can
be used to build a circumstantial case of discrimination, Knox cites to
Robinson v. Runyon, 149 F.3d 507, 514 (6th Cir. 1998) and Abrams v.
Lightolier, Inc., 50 F.3 d 1204 , 1214 (3d C ir. 1995). In both cases the
court held that various discriminatory statements and events, taken
together, could suffice to build a case of discrimination. In the present
case, however, Knox is unable to produce any other circumstantial
evidence o f sexually discrimina tory treatment.
that the position involves some direction of other employees
in the absence of a supervisor and is a special designation.
Even if this did qualify as a meaningful demotion, however,
Knox is unable to establish that the decision to remove her
from the group leader position was mere pretext for some
other discriminatory motive. Neaton clearly informed Knox
that she was being stripped of her position as group leader
because she violated the Neaton Associate Standards of
Conduct.1 Knox responds that genuine issues of material fact
exist as to whether this reason was pretextual because the
decision to place her on probation was made in part by
Matlock. She argues that his comments and hostile behavior
towards her, taken together, constitute a circumstantial case
of discrimination.2 As stated above, however, these incidents
do not constitute circumstantial evidence of sex-based
discrimination, as opposed to sex-neutral animosity between
her and Matlock. Furthermore, Knox’s allegation that Wright
was unduly influenced by Matlock is based entirely on
statements overheard by one Neaton employee and
transmitted to Knox by yet another individual, which
constitutes inadmissible hearsay, as also discussed above.
Thus, Knox is unable to establish that Neaton’s decision to
remove her from the group leader position was a mere pretext
for an alternative discriminatory rationale.

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No. 03-3075 Knox v. Neaton Auto Products Mfg. 9
The district court also correctly held that Knox failed to
establish that she was treated differently than similarly
situated non-protected employees. Relying on this court’s
decision in Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir.
1999), the district court held that Knox must establish that “a
male employee, who was on probation, was not discharged
for action or inaction that Neaton had determined shut down
a production line.” [Although it ultimately reached the
correct result,] [we] believe the district court misconstrued
this circuit's precedent in applying an exceedingly narrow
reading of the Hollins decision. In employment
discrimination cases, the plaintiff need not demonstrate an
exact correlation with the employee receiving more favorable
treatment in order for the two to be considered “similarly
situated;” rather, this court has held that the plaintiff and the
employee with whom the plaintiff seeks to compare himself
or herself must be similar in “all of the relevant aspects.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
353 (6th Cir. 1998) (citing Pierce v. Commonwealth Life Ins.
Co., 40 F.3d 796 (6th Cir. 1994)) (emphasis in original). This
amounts to a harmless error, however, because Knox has
failed to provide any admissible evidence that similarly
situated males were treated differently than she was. To
establish her prima facie case, Knox points exclusively to
statements she made in response to an Equal Opportunity
Employment Commission questionnaire. Nowhere in the
record are these or other statements substantiated or is
testimony regarding these incidents developed. Knox does
not indicate that she has any personal knowledge of these
events, nor does she indicate how or where she obtained this
information. Furthermore, Knox does not present any
evidence regarding the terms of probation that these male
employees were allegedly under. In fact, at oral argument
Knox’s counsel admitted a failure to gather the necessary
information to support this claim. Without such information,
it is impossible to determine whether Knox can make a prima
facie showing that she was treated less favorably than
similarly situated males. Knox has therefore failed to meet
her burden of production under Rule 56(e) of the Federal
10 Knox v. Neaton Auto Products Mfg. No. 03-3075
Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S.
317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Rule
56(e) requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the “depositions,
answers to interrogatories, and admissions on file,” designate
“specific facts showing that there is a genuine issue for trial”).
Thus, the district court correctly held that because Knox
failed to establish a prima facie case of discrimination,
Neaton was entitled to summary judgment on the Title VII
and R.C. § 4112.02 claims.
C. Sexual Harassment
In order to establish a prima facie case of hostile
environment sexual harassment under R.C. § 4112, Knox
must establish that: (1) the harassment was unwelcome;
(2) the harassment was based on sex; (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) the
harassment was committed by a supervisor or the employer,
through its agents or supervisory personnel, who 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, 176-77, 729
N.E.2d 726 (Ohio 2000). Conduct that is merely offensive,
however, is not actionable. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993);
Hampel, 89 Ohio St. 3d at 180. Rather, the conduct
complained of must be severe or pervasive enough to create
an environment that not only the victim subjectively regards
as abusive but also a reasonable person would find hostile or
abusive. Harris, 510 U.S. at 21-22. To be actionable,
harassment must constitute more than words that have sexual
content or connotations. See Onacle v. Sundowner Offshore
Serv., Inc., 523 U.S. 75, 80, 140 L. Ed. 2d 201, 118 S. Ct. 998
(1998). Finally, members of one sex must be exposed to
disadvantageous terms or conditions of employment to which
members of the other sex are not exposed. Id.

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No. 03-3075 Knox v. Neaton Auto Products Mfg. 11
The District Court granted summary judgment on Knox’s
hostile environment sexual harassment claim on the grounds
that she had failed to make out the third element of the
Hampel test; namely, that the alleged conduct was sufficiently
severe or pervasive to affect the terms, conditions, or
privileges of employment, or any matter directly or indirectly
related to employment. 89 Ohio St. 3d at 176-77. Knox
alleges in her deposition that she heard co-workers use “the f-
word,” that they “took the Lord’s name in vain,” and that one
co-worker, Greg Schaffer, continuously made sex-related
comments, such as commenting on different “women’s good
looking behind[s],” and talked about “sleeping with different
women and comments about what [they] would be like.”
Knox states that she repeatedly asked Schaffer to stop and
reported his behavior, but it never ceased. She admits,
however, that these comments were usually made during shift
meetings and were directed to the group, rather than to her
personally. Cf. Black v. Zaring Homes, Inc., 104 F.3d 822
(6th Cir. 1997), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114,
118 S. Ct. 172 (1997) (noting that in that case, most of the
comments were not directed at plaintiff, a fact which
contributed to the conclusion that the conduct was not severe
enough to create an objectively hostile environment) (citation
omitted). She also admits that she was never touched or
physically harassed. Cf. Harris, 510 U.S. at 17-23 (listing a
non-exhaustive set of factors to consider in evaluating
whether harassment is severe or pervasive enough to be
actionable, including severity of the conduct complained of
and whether it is physically threatening or humiliating).
Finally, Knox admitted that the comments “[d]idn’t get in
[her] way of actually doing [her] job . . .” Id. (listing as a
factor whether conduct unreasonably interferes with an
employee’s performance). Thus, because the evidence is
insufficient to support a finding that the various comments
and behavior complained of by Knox, although crass and
offensive, were severe or pervasive enough to create an
objectively hostile work environment, the district court
correctly denied Knox’s sexual harassment claim.
12 Knox v. Neaton Auto Products Mfg. No. 03-3075
D. Wrongful Discharge in Violation of Public Policy
In order to establish a claim under Ohio law for wrongful
discharge in violation of public policy, a plaintiff must prove
the following four elements: (1) a clear public policy
manifested in a statute, regulation or the common law;
(2) that discharging an employee under circumstances like
those involved would jeopardize the policy; (3) that the
discharge at issue was motivated by conduct related to the
policy; and (4) that there was no overriding business
justification for the discharge. Kulch v. Structural Fibers,
Inc., 78 Ohio St. 3d 134, 151, 677 N.E.2d 308 (Ohio 1997);
see also Collins v. Rizkana, 73 Ohio St. 3d 65, 69-70, 652
N.E.2d 653 (Ohio 1995). The District Court reasoned that the
third and fourth elements amount to “a legitimate, non-
discriminatory reason analysis for the statutory claim under
[R.C. § 4112].” Because it granted summary judgment on
Knox’s sex discrimination claim, the District Court held that
summary judgment on the wrongful discharge claim was
proper too.
In her complaint, Knox argues that she was “wrongfully
discharged . . . in violation of her rights as set forth under the
Neaton Auto Product Manufacturing Handbook and under
common law.” She does not identify any other source of
“clear public policy” to sustain her wrongful discharge claim.
In similar cases, R.C. § 4112 has been recognized as a source
of public policy sufficient to satisfy the first prong of the
Kulch test. However, because Knox cannot survive summary
judgment on her section 4112/Title VII claim, and because
Knox has not identified any other clear public policy that
would be jeopardized by her termination, summary judgment
is proper on this claim as well. See Cochran v. Columbia Gas
of Ohio, Inc., 138 Ohio App. 3d 888, 895, 742 N.E.2d 734
(Ohio Ct. App. 2000) (affirming a grant of summary
judgment against appellant, where the court had determined
that appellant failed to establish grounds for relief under R.C.
§ 4112.02 and did not identify any other source of “clear
public policy” to sustain a wrongful discharge claim).

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No. 03-3075 Knox v. Neaton Auto Products Mfg. 13
Therefore, the district court correctly granted summary
judgment on the wrongful discharge claim.
E. Defamation
Defamation is a “false publication that injures a person’s
reputation, exposes him to public hatred, contempt, ridicule,
shame or disgrace, or affects him adversely in his trade or
business.” Sweitzer v. Outlet Communs., Inc., 133 Ohio App.
3d 102, 108, 726 N.E.2d 1084 (Ohio Ct. App. 1999).
Furthermore, Ohio law provides for a defense of qualified
privilege to allegations of defamation where the publisher and
the recipient have a common interest, and the communication
is of a kind reasonably calculated to protect or further it. See
Hahn v. Kotten, 43 Ohio St. 2d 237, 243, 331 N.E.2d 713
(Ohio 1975). For example, a communication made in good
faith on a matter of common interest between an employer
and an employee, or between two employees concerning a
third employee, is protected by qualified privilege. See Evely
v. Carlon Co., Div. of Indian Head, Inc., 4 Ohio St. 3d 163,
165, 166, 447 N.E.2d 1290 (Ohio 1983). Once a defendant
demonstrates the existence of qualified privilege, the plaintiff
can only prevail upon a showing of actual malice. Id. at 1293.
Knox claimed before the district court that Neaton
committed defamation when Henry Wright filed his more
detailed report of the September 16, 1999 hose incident,
attributing to Knox the statements: “that’s not the way a
Christian should act” and “you are becoming more of a
devil’s advocate every day.” She argues that the district court
erroneously held that Wright’s report containing these
statements was protected by qualified privilege. She also
argues that the district court erred in holding that Wright’s
report was not defamatory. Because Wright’s report was
made in the regular course of business regarding matters of
common interest between himself, as Knox’s superior, and
the Human Resources Department at Neaton concerning
Knox’s behavior on the job, the district court correctly held
that these statements were protected by qualified privilege.
14 Knox v. Neaton Auto Products Mfg. No. 03-3075
In order to establish actual malice, Knox further claims that
circumstantial evidence exists that Matlock pressured Wright
into drafting the second report which stated that Knox had
used abusive language. This circumstantial evidence cited by
Knox is limited to (1) the fact that in Wright’s first report
there was no mention of abusive language, and (2) statements
by a Neaton employee who heard that another co-worker
overheard Matlock telling Wright that he should not let the
issue drop. As stated above, the district court correctly
concluded that these alleged statements, overheard by a co-
worker’s co-worker, constitute hearsay within hearsay and
would not be admissible in court to persuade a jury that
Wright acted with actual malice. The fact that there existed
some discrepancy between the two reports, as well as between
what Knox claims to have stated and what Wright attributed
to her in his second report do not, alone, reach the level of
actual malice. Therefore, the district court correctly granted
summary judgment on Knox’s defamation claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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