United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
C. SMITH, UNITED STATES DISTRICT COURT.
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
Parker discloses her transgender status and is harassed by
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).
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).
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).
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.
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).
Parker's therapist requests accommodations from Strawser
on Parker's behalf.
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).
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).
Parker is sexually assaulted by a co-worker.
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.
La Joye asks Parker to resign.
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.
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).
Parker is demoted and replaced by Kelly.
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).
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).
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).
Parker is terminated for insubordination.
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,
Parker files a charge of discrimination with the
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).
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 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).
STANDARD FOR DISMISSAL ...