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Fisher v. Fuyao Glass America Inc.

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

January 3, 2020

EBONE FISHER, Plaintiff,
v.
FUYAO GLASS AMERICA, INC., et al., Defendants.

          DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (DOC. #10); DISMISSING COUNTS I-IV WITH PREJUDICE

          WALTER H. RICE UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         This 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.

         I. Background and Procedural History

         According 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.

         Fisher 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.

         Sometime 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.

         Thereafter, 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.

         II. Fed.R.Civ.P. 12(c)

         "The 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).

         "The 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 omitted).

         III. Analysis

         Defendants 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 discrimination.

         In his 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 ...


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