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Parker v. Strawser Construction, Inc.

United States District Court, S.D. Ohio, Eastern Division

April 25, 2018

TRACY PARKER, Plaintiff,
v.
STRAWSER CONSTRUCTION, INC., et al., Defendants.

          Jolson Magistrate Judge.

          OPINION AND ORDER

          GEORGE C. SMITH, UNITED STATES DISTRICT COURT.

         This action arises out of Plaintiff Tracy Parker's claims of sex and disability discrimination, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”), and Chapter 4112 of the Ohio Revised Code (“Chapter 4112”) against her former employer, Defendant Strawser Construction, Inc., and four individual employees of Strawser. All five defendants filed separate Motions to Dismiss Parker's Amended Complaint (Docs. 18-22). Parker also moved to strike portions of Defendants' reply briefs, or in the alternative, for leave to file a sur-reply (“Parker's Motion to Strike”). (Doc. 36). The motions are fully briefed and ripe for disposition. For the following reasons, each of the individual defendants' Motions to Dismiss is GRANTED; Strawser's Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Parker's Motion to Strike is DENIED AS MOOT.

         I. BACKGROUND

         A. Parker discloses her transgender status and is harassed by co-workers.

         Parker began working for Strawser as a truck driver in 2009. (Doc. 10, Am. Compl. ¶ 34). In 2012, Strawser promoted Parker to line truck driver. (Id. ¶ 37). Shortly thereafter, Parker began transitioning her gender from male to female. (Id. ¶¶ 39-40). Although born male, Parker identifies as transgender and was diagnosed by her physician with gender dysphoria in September 2012. (Id. ¶¶ 21-23, 29).

         Parker disclosed her gender dysphoria diagnosis and her gender transition to Strawser in September 2012. (Id. ¶ 41). When Parker made this disclosure to her immediate supervisor, Dale Ernst, he stated, “you had better be ready to be picked on.” (Id. ¶ 42). Following this disclosure, Ernst began “writing up Parker for allegedly not executing her job duties or for nonexistent/minor errors as evidence” (e.g., errors in her log book), which had not occurred prior to the disclosure. (Id. ¶¶ 47, 49). Other, non-transgender employees were not written up for similar minor or unsubstantiated errors. (Id. ¶ 48).

         Parker was also subjected to “constant and continuing harassment” due to her transgender and transitioning status from her co-workers, in particular, Floyd Kelly and Brian Tucker. (Id. ¶¶ 56-57). Kelly made “repeated derogatory and discriminatory gender, gender identity, and transition comments and jokes” and stated to Parker on multiple occasions that “Kelly believed that Parker was really a male, who was attracted to other males.” (Id. ¶¶ 58-59). Kelly and Tucker would make comments such as “[Parker's] performance was typical ‘because you [Parker] drive like a woman, ” and “we have to be really careful of what we say around him, ” and would purposely misgender Parker (by referring to her with male pronouns). (Id. ¶¶ 60-62).

         As part of her job duties, Parker was assigned to share a hotel room with a male co-worker, Ralph Holsinger, in September 2012. (Id. ¶ 64). Kelly made comments stating that Parker and Holsinger were having a sexual relationship and stated to Holsinger that Holsinger was a homosexual due to the rooming arrangements. (Id. ¶ 64-65). Parker complained to Ernst regarding Kelly's comments, which Parker felt constituted sexual harassment. (Id. ¶¶ 66-67). Directly following Parker's complaint, Kelly's harassment of Parker intensified, and the two ended up in a physical altercation as a result of the harassment. (Id. ¶¶ 68, 71). Only Parker received a negative year-end performance review from Ernst, despite being the target of harassment. (Id. ¶¶ 72-74).

         The harassment continued in 2013. During one of Parker's work-related hotel stays, Kelly disclosed to the hotel staff that Parker was transgender, and a hotel staff member “called Parker to the front desk, simply to see what she looked like.” (Id. ¶¶ 76-79). On another occasion, Parker walked into a hotel lobby wearing traditionally female clothing, and Kelly stated, “I wish you wouldn't do that because you are making us look bad.” (Id. ¶ 80). Kelly further stated on other occasions, “can't you just dress like a man?” and “you make for an ugly woman.” (Id. ¶¶ 81-82).

         B. Parker's therapist requests accommodations from Strawser on Parker's behalf.

         In April 2013, Parker's therapist, Dr. Frederick Peterson, wrote a letter to Freda Grote, Strawser's Human Resources Manager, informing Grote of Parker's gender dysphoria and requesting that Strawser accommodate Parker by allowing her to use female restrooms, and to refer to her using the female gender terminology. (Id. ¶¶ 84-87). Grote told Parker that she could only make such accommodations if Parker provided documentation showing that everything was “legal, ” but did not explain what she meant by “legal.” (Id. ¶¶ 88-89).

         At about the same time in April 2013, Parker also disclosed to Grote that Parker would soon begin taking medication (such as hormone treatments) to help her transition her physical gender, and asked whether Parker's medical insurance would cover sex reassignment surgery. (Id. ¶¶ 90-93). Grote denied Parker's inquiry, without looking into whether Strawser's medical insurance would cover such a surgery. (Id. ¶ 95).

         C. Parker is sexually assaulted by a co-worker.

         In July 2013, Parker was sexually harassed and sexually assaulted by a co-worker, Terry Jordan. Parker reported the assault and Strawser immediately terminated Jordan, but other co-workers blamed and harassed Parker for Jordan's termination. (Id. ¶¶ 99-102). On the same day Jordan was terminated, Strawser moved Parker's work station to the workshop, which was viewed by Strawser employees as a form of punishment. (Id. ¶¶ 103-104). Further, following Jordan's termination, Ernst would “scream at Parker on occasion” and “stated that he would treat Parker better if she performed sexual favors.” (Id. ¶¶ 106-07). Parker did not solicit any such sexual conduct or activity from Ernst, and asked that he not make such requests. (Id. ¶ 108).

         D. La Joye asks Parker to resign.

         In spring of 2014, Parker contacted her superintendent, Ben La Joye, and asked if there was anything he could do to curb the harassment. (Id. ¶¶ 114-16). La Joye said there was nothing he could do, and declined her request to rearrange the crew to ensure Parker would no longer have to work with Kelly or Tucker. (Id. ¶¶ 117-18). La Joye told her that “if she was not tough enough to handle the harassment, she was not tough enough to work in construction, ” and instructed Parker to text him stating that she was resigning. (Id. ¶¶ 119-121).

         As instructed, Parker texted her resignation to La Joye, and also sent a message to human resources stating that if Strawser could not remedy the constant sexual harassment, Parker would have to resign. (Id. ¶¶ 122-123). Grote called Parker and asked her to withdraw her resignation and engage in a discussion with La Joye, Grote, and Chris Anspaugh (president of Strawser). (Id. ¶ 124). This meeting was held in May 2014, at which Parker was told that “accommodating transgender employees was a ‘work in progress' at Strawser, and that they would attempt to remedy the harassment.” (Id. ¶ 125-127). Despite this assertion, Strawser did not take any meaningful measures to end the harassment. (Id. ¶ 128).

         E. Parker is demoted and replaced by Kelly.

         In June or July 2014, Strawser demoted Parker from her line truck driver position, resulting in a pay cut of approximately $3.00/hour. (Id. ¶¶ 129-30). Strawser placed Kelly in the line truck driver position that Parker previously held, for which Parker alleges Kelly was unqualified. (Id. ¶¶ 131-33). The demotion came two to three months after Parker made protected complaints concerning sexual harassment during her meeting with Grote, La Joye, and Anspaugh. (Id. ¶ 133).

         Parker complained about her demotion to Ernst and Grote and stated that she believed Kelly had been treated more favorably due to Parker's gender, disability, and protected complaints, because Parker was more qualified than Kelly. (Id. ¶¶ 134-36). Parker also sent text messages to Grote and La Joye stating she would not “stand for” unfair treatment, in reference to her demotion. (Id. ¶ 139). Two to three weeks after Parker's demotion, Parker was suspended without pay for sending these texts, which Strawser perceived as threatening. (Id. ¶¶ 137-41). Strawser also instructed Parker to see a Strawser-approved therapist, or else she would be terminated. (Id. ¶ 142). Although no other Strawser employees had ever been required to see a therapist, Parker complied and was permitted to return to work. (Id. ¶¶ 143-46). Parker continued to be harassed upon her return. (Id. ¶ 147).

         In late August or early September 2014, Ernst screamed and cursed at Parker for making an incorrect entry in her log book (which he did not do with other employees), and later screamed and cursed at Parker again, accusing her of making up her discrimination complaints. (Id. ¶¶ 148-154). Later, Parker sent Ernst a text message asking him to refrain from cursing and yelling at her for minor mistakes. Ernst called Parker in response and told her “be a man” and “act like a man.” (Id. ¶¶ 151-152). Parker complained to La Joye about Ernst's conduct, but Ernst received no discipline. (Id. ¶¶ 155-56).

         F. Parker is terminated for insubordination.

         On October 19, 2014, Michael Zamborski, a project manager for Strawser, instructed Parker to move a loader truck. Parker refused because per Department of Transportation regulations, she would be unable to move the truck without triggering a ten-hour break period as she had already worked a full day. (Id. ¶¶ 158-162). Strawser then terminated Parker's employment for insubordination. (Id. ¶ 163). Strawser's termination letter addressed Parker as “Mr. Parker, ” which Parker felt constituted sexual harassment. (Id. ¶ 164, 167).

         G. Parker files a charge of discrimination with the EEOC.

         Following her termination, Parker filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging “discrimination on the basis of sex, disability, and retaliation when [Strawser] subjected her to less favorable terms and conditions of employment, harassment, demotion, and termination.” (Doc. 10-2, EEOC Determination Letter at 1). On March 28, 2017, the EEOC issued Parker a determination letter, finding “that the evidence substantiates that [Parker] was harassed on the basis of sex, in violation of Title VII. However, the [EEOC was] unable to conclude that she was sexually harassed, retaliated against, demoted or discharged. The [EEOC] makes no finding regarding the allegation of disability discrimination.” (Id.) Parker received a right to sue letter from the EEOC on April 12, 2017. (Doc. 10-1, Right to Sue Letter).

         Parker commenced this action on June 21, 2017, asserting eight counts of discrimination, harassment, and retaliation on the basis of sex under Title VII, disability discrimination under the ADA, and corresponding state law claims under Ohio Revised Code Chapter 4112. (Doc. 1, Compl.). She later amended her Complaint on July 17, 2017, to correct an error in Defendant Chris Anspaugh's name. (Doc. 10). All five defendants now move separately[1] to dismiss Parker's Amended Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

         II. STANDARD FOR DISMISSAL ...


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