United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION
FOR PARTIAL JUDGMENT ON THE PLEADINGS (DOC. #10); DISMISSING
COUNTS I-IV WITH PREJUDICE
H. RICE UNITED STATES DISTRICT JUDGE.
Ebone Fisher ("Fisher"), is an African-American
male and former employee of Fuyao Glass America, Inc.
("Fuyao"). After being terminated from his job in
February of 2017, he filed suit against Fuyao and his former
supervisor, Scott Acheson ("Acheson"). His verified
complaint alleges eight causes of action: (I) discrimination
on the basis of sex through the creation of a hostile work
environment in violation of R.C. § 4112.02(A) and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2
("Title VII"); (II) sex discrimination in violation
of Title VII; (III) sex discrimination under R.C. §
4112; (IV) wrongful termination based on sex discrimination
in violation of Title VII and R.C. § 4112; (V) race
discrimination under Title VII; (VI) race discrimination
under R.C. § 4112; (VII) wrongful termination based on
race discrimination; and (VIM) retaliation.
matter is currently before the Court on Defendants'
Motion for Judgment on the Pleadings, Doc. #10. Defendants
seek dismissal of Counts I, II, III and IV.
Background and Procedural History
to the Complaint, Plaintiff Fisher worked at Fuyao from July
25, 2016, through February 6, 2017. Originally, he was a
full-time employee assigned to a first-shift position. At his
request, he was later transferred to a third-shift position.
However, shortly thereafter, Fisher was moved back to the
first-shift position and demoted to temporary status.
Fisher's supervisor was Scott Acheson. Fisher alleges
that, in contrast to similarly-situated Caucasian employees,
he was assigned mostly janitorial and manual labor duties.
Acheson also assigned Fisher to drive a forklift. Although
forklift operators are paid more than regular employees,
Fuyao refused to increase Fisher's pay, claiming that he
was not hired as a forklift operator.
approached his Team Leader, Margie "Nicki" Brody
("Brody"), to discuss this pay disparity. Fisher
alleges that, during this meeting, Brody took out her mobile
phone and showed him a picture of her vagina. Uncomfortable
and offended, Fisher stated that he did not want to see the
picture and walked away.
in January of 2017, Fisher and two other African American
employees filed a complaint with Human Resources about the
way they were being treated by Acheson. Fisher also
complained about the incident involving Brody. Nevertheless,
Fuyao took no corrective action against Brody or Acheson.
Within two weeks of filing these complaints, Fisher was
suspended and subsequently fired.
Fisher filed suit against Fuyao and Acheson, alleging eight
causes of action. Pursuant to Fed.R.Civ.P. 12(c), Defendants
have moved to dismiss Counts I, II, III and IV. Doc. #10.
That motion is now fully briefed.
standard of review for a Rule 12(c) motion is the same as for
a motion under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted," Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
"For purposes of a motion for judgment on the pleadings,
all well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment." id. (quotation omitted).
factual allegations in the complaint need to be sufficient to
give notice to the defendant as to what claims are alleged,
and the plaintiff must plead 'sufficient factual
matter' to render the legal claim plausible,
i.e., more than merely possible." id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
"However, a legal conclusion couched as a factual
allegation need not be accepted as true on a motion to
dismiss, nor are recitations of the elements of a cause of
action sufficient." Id. (internal quotations
seek dismissal of Counts I through IV, the Counts containing
allegations of discrimination based on sex. Count I alleges a
hostile work environment based on sex. Counts II and III
allege sex-based discrimination in violation of federal and
state law. Count IV alleges wrongful termination based on sex
response brief, Fisher concedes that Counts II, III and IV
should be dismissed because he has not alleged facts showing
that Fuyao is the "unusual employer who discriminates
against the majority." Zambetti v. Cuyahoga
Community Coll.,314 F.3d 249, 256 (6th Cir. 2002).
Fisher also concedes that Counts I, II, III and IV should be
dismissed against Defendant Acheson, given that ...