Court of Appeals of Ohio, Fourth District, Pickaway
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
P. Smith, Presiding Judge.
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
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.
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. The parties
dispute on appeal whether the counterclaims alleged claims
based upon direct or vicarious liability, or both.
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."
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.
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.
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
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). "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).
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.
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
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
Housing Act of 1968/Title VIII
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.
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.
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
(i) Totality of circumstances. Whether hostile
environment harassment exists depends upon the totality of
* * *
(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.
* * *
(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).
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.
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, ...