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Kingston Mound Manor I v. Keeton

Court of Appeals of Ohio, Fourth District, Pickaway

August 14, 2019

KINGSTON MOUND MANOR I, Plaintiff-Appellee,
v.
CAROLYN KEETON, Defendant-Appellant.

          Sara L. Rose and Mark M. McCarthy, Sara L. Rose, LLC, Pickerington, Ohio and Gary D. Kenworthy, Kenworthy Law Office, Circleville, Ohio, for Appellee.

          Kristen Finzel Lewis and Baylee Butler, Southeastern Ohio Legal Services, Chillicothe, Ohio, for Appellant.

          DECISION AND JUDGMENT ENTRY

          Jason P. Smith, Presiding Judge.

         {¶1} This is an appeal from a Pickaway County Court of Common Pleas judgment entry dismissing Appellant's counterclaim for failure to state a claim. On appeal, Appellant, Carolyn Keeton, contends the trial court erred when it dismissed her counterclaims for violation of the Fair Housing Act, codified in 42 U.S.C. 3601, et seq., and the Ohio Civil Rights Act, codified in R.C. 4112, et seq. Upon review, we find no merit to Appellant's arguments. Accordingly, we overrule her sole assignment of error and affirm the judgment of the trial court.

         FACTS

         {¶2} The underlying matter began with the January 18, 2018, filing of a complaint in forcible entry and detainer by Appellee, Kingston Mound Manor I, against Appellant, Carolyn Keeton, in the Circleville Municipal Court, after Appellant stopped paying rent. The eviction action contained claims for possession and money damages. Appellee filed her answer and counterclaims on February 26, 2018, alleging sex-based housing discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. and the Ohio Civil Rights Act, R.C. 4112 et seq. Upon Appellee's request, the case was certified to the Pickaway County Court of Common Pleas.

         {¶3}Appellee's counterclaim for sex-based housing discrimination stemmed from an allegation that Chad Workman, allegedly a maintenance employee of Appellee, groped Appellant, made sexually explicit remarks to her, forced her to perform sexual acts, and then threatened her by telling her that if word got out about the incident, it would not be good for her. The counterclaim alleged these acts occurred as part of a single incident that took place while Mr. Workman was in Appellant's apartment installing window blinds, approximately eight months before the eviction action was filed. Appellant further noted in her counterclaim that Mr. Workman had a master key to all apartments, including hers. Appellee filed an answer admitting Mr. Workman possessed a master key and that he was an employee.[1] The parties dispute on appeal whether the counterclaims alleged claims based upon direct or vicarious liability, or both.

         {¶4} Thereafter, Appellee filed a motion to dismiss the counterclaims for failure to state a claim, in accordance with Civ.R. 12(B)(6). Appellant filed a lengthy memorandum contra the motion to dismiss. Over the objection of Appellant, the trial court dismissed her claims for failure to state a claim in accordance with Civ.R. 12(B)(6) on June 18, 2018. In dismissing Appellant's counterclaims, the trial court construed the claims as being ones for vicarious liability only, based upon the doctrine of respondeat superior. The trial court found, in part, that "there [was] no way to characterize the alleged assault that would bring it within the scope of employment." The trial court further found that the incident could not be "described as calculated to facilitate or promote the business for which the maintenance worker was employed."

         {¶5} Appellee subsequently filed a motion for summary judgment on the issue of damages, which the trial court granted in part. The trial court reserved, however, the right to hear evidence and arguments regarding the cleaning costs and trash removal. Then, on October 10, 2018, Appellee appeared before the trial court and orally withdrew its remaining claims. The trial court filed a judgment entry the same day dismissing the remaining claims. It is from that final order that Appellant brings her timely appeal, setting forth a single assignment of error for our review.

         ASSIGNMENT OF ERROR

         I. THE PICKAWAY COUNTY COURT OF COMMON PLEAS ERRED WHEN IT DISMISSED APPELLANT'S COUNTERCLAIMS FOR VIOLATION OF THE FAIR HOUSING ACT, 42 U.S.C. 3601, ET SEQ. AND OHIO CIVIL RIGHTS ACT, R.C. 4112 ET SEQ.

         {¶6} Appellant contends the trial court erred when it dismissed her counterclaims for violation of the Fair Housing Act and Ohio Civil Rights Act. Appellant raises two arguments under her sole assignment of error. First, Appellant contends that reviewed under an aided-by-agency standard for vicarious liability in sexual harassment claims, she stated a claim against Appellee for violation of the Fair Housing Act. Second, Appellant contends she stated a claim against Appellee for violation of the Fair Housing Act and Ohio Civil Rights Act based on a negligence theory of liability. Appellee contends that because Appellant failed to demonstrate the maintenance worker at issue had any supervisory or managerial authority, or that any tangible housing action was taken against her, she has failed to demonstrate any violation of the Fair Housing Act. Appellee also argues the trial court correctly dismissed Appellant's vicarious liability claims because the actions of Mr. Workman were outside the scope of his employment. Further Appellee argues that Appellant's counterclaim failed to allege a negligence claim in the form of a direct liability claim for negligent hiring and/or supervision of the maintenance worker. While Appellee disputes that Mr. Workman was its employee on appeal, it concedes that, for purposes of considering the Civ.R. 12(B)(6) motion, it is appropriate to accept the truth of Appellant's claim that Mr. Workman was Appellee's employee. We begin with a look at our standard of review, as well as a general overview of the Fair Housing Act and Ohio Civil Rights Act, as they relate to sexual harassment claims as a discriminatory housing practice in the context of fair housing.

         Standard of Review

         {¶7} A review of the record indicates the trial court dismissed Appellant's complaint for failure to state a claim in accordance with Civ.R. 12(B)(6), upon the motion of Appellee. Because it presents a question of law, we review a trial court's decision regarding a motion to dismiss independently and without deference to the trial court's determination. See Roll v. Edwards, 156 Ohio App.3d 227, 2004-Ohio-767, 805 N.E.2d 162, ¶ 15 (4th Dist.); Noe v. Smith, 143 Ohio App.3d 215, 218, 757 N.E.2d 1164 (4th Dist. 2000).[2] "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A trial court may not grant a motion to dismiss for failure to state a claim upon which relief may be granted unless it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus; see also Taylor v. London, 88 Ohio St.3d 137, 139, 723 N.E.2d 1089 (2000).

         {¶8} Furthermore, when considering a Civ.R. 12(B)(6) motion to dismiss, the trial court must review only the complaint, accepting all factual allegations as true and making every reasonable inference in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988); Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 617, 662 N.E.2d 1098 (10th Dist.1995); see also JNS Ents., Inc. v. Sturgell, 4th Dist. Ross No. 05CA2814, 2005-Ohio-3200, ¶ 8. The court, however, need not presume the truth of legal conclusions that are unsupported by factual allegations. McGlone v. Grimshaw, 86 Ohio App.3d 279, 285, 620 N.E.2d 935 (4th Dist.1993); citing Mitchell at 193.

         {¶9} We further note that under the Ohio Rules of Civil Procedure, a complaint need only contain "a short and plain statement of the claim showing that the party is entitled to relief." Civ.R. 8(A)(1). Civ.R. 8(E) further directs that averments contained in a pleading be simple, concise, and direct. Accordingly, "Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity." Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. We observe, however, that" '[i]n a few carefully circumscribed cases, '" a plaintiff must" 'plead operative facts with particularity.'" State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 109, 647 N.E.2d 799 (1995); quoting York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991); citing Mitchell, supra (employee's intentional tort claim against employer) and Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991) (negligent hiring claim against religious institution); see also S.Ct.Prac.R. 12.02(B)(1) (complaints in original actions filed in the Supreme Court); Civ.R. 9(B) (claims of fraud or mistake).

         {¶10} Moreover, a plaintiff is not required to plead the legal theory of the case at the pleading stage and need only give reasonable notice of the claim. State ex rel. Harris v. Toledo, 74 Ohio St.3d 36, 656 N.E.2d 334 (1995); see York, supra, at 145 (stating that complaint need not contain more than "brief and sketchy allegations of fact to survive a motion to dismiss under the notice pleading rule"). Thus, "a plaintiff is not required to prove his or her case at the pleading stage." York at 145; accord State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60, 2018-Ohio-3361, 110 N.E.3d 1275, ¶ 16 (citing York and noting that party "not required to prove her case at the pleading stage").

         Fair Housing Act of 1968/Title VIII

         {¶11} The Fair Housing Act was originally enacted in 1968 as part of Title VIII of the Civil Rights Act of 1968. It "prohibits harassment in housing and housing-related transactions because of race, color, religion, sex, national origin, disability, and familial status, just as Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII) prohibits such harassment in employment." Fed. Reg. 63054, Executive Summary. The Fair Housing Act is codified in 42 U.S.C. §3601 et seq. 42 U.S.C. §3601 declares that "[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." The Fair Housing Act further provides in 42 U.S.C. § 3608(a) that "[t]he authority and responsibility for administering this Act shall be in the Secretary of Housing and Urban Development." Additionally, the Act provides in 42 U.S.C. 3614(a) titled "Rules to Implement Title" as follows:

The Secretary may make rules (including rules for the collection, maintenance, and analysis of appropriate data) to carry out this title. The Secretary shall give public notice and opportunity for comment with respect to all rules made under this section.

         {¶12} The Code of Federal Regulations (hereinafter "C.F.R.") is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government.

         {¶13} As noted in 81 Fed. Reg. 63054, 24 CFR Part 100 provides for "Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act." 24 C.F.R. Subpart H, §100.600 defines both quid pro quo and hostile environment harassment in the context of fair housing and provides as follows:

(a) General. Quid pro quo and hostile environment harassment because of race, color, religion, sex, familial status, national origin or handicap may violate sections 804, 805, 806, or 818 of the Act, depending on the conduct. The same conduct may violate one or more of these provisions.
(1) Quid pro quo harassment. Quid pro quo harassment refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms or conditions of a residential real-estate-related transaction. An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand.
(2) Hostile environment harassment. Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith, or the availability, terms or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housing-related services or facilities, or of the residential real-estate transaction.[3]
(i) Totality of circumstances. Whether hostile environment harassment exists depends upon the totality of the circumstances.
* * *
(ii) Title VII affirmative defense. The affirmative defense to an employer's vicarious liability for hostile environment harassment by a supervisor under Title VII of the Civil Rights Act of 1964 does not apply to cases brought pursuant to the Fair Housing Act.[4]
* * *
(c) Number of incidents. A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo. (Emphasis added).

         Thus, the rules promulgated by the Director of the Department of Housing and Urban Development state that sexual harassment, both quid pro quo and hostile environment, constitute a "discriminatory housing practice" for purposes of the Fair Housing Act.

         {¶14} 42 U.S.C. § 3602(f) defines "discriminatory housing practice" as "an act that is unlawful under section 3604, 3605, 3606, or 3617" of the U.S.C. Appellant's counterclaim alleged violations of 42 U.S.C. §§ 3604(a) and (b) and 3617. 42 U.S.C. § 3604 provides, in pertinent part, as follows:

As made applicable by section 3603 of this title and except as exempted by section 3603(b) and 3607 of this title, it shall be unlawful -
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, ...

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