Griswold v. Fresenius Usa, Inc.

• Decision Date: 20 February 1997
• Docket Number: No. 3:96 CV 7241.,3:96 CV 7241.
• Parties: Joseph C. GRISWOLD, Plaintiff, v. FRESENIUS USA, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

Page 1166

964 F.Supp. 1166

Joseph C. GRISWOLD, Plaintiff, v. FRESENIUS USA, INC., et al., Defendants.

No. 3:96 CV 7241.

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

February 20, 1997.

Thomas A. Sobecki, Jane S. Randall, Toledo, OH, for Plaintiff.

Thomas A. Dixon, Margaret A. Mattimoe, Eastman & Smith, Toledo, OH, Randall S. Feil, Oswald & Feil, Salt Lake City, UT, for Defendants.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendants' motions to dismiss Counts I, II and IV of Plaintiff's amended complaint insofar as they are brought against Defendants Tracy Kinder and Bill Griswold in their individual capacities, and to dismiss Counts IV, V, VI and VIII in their entirety, For the following reasons, Defendants' motions will be granted as to Counts I, II, V, VI, and VIII, insofar as Count VIII alleges an intentional failure to provide a safe work environment, and denied as to Counts IV and VIII, insofar as Count VIII alleges a negligent failure to provide a safe work environment.

I. BACKGROUND

Plaintiff Joseph C. Griswold is a former employee of Defendant Fresenius USA, Inc. ("Fresenius"). Plaintiff and Defendant Tracy Kinder worked together under the supervision of Defendant Bill Griswold. Plaintiff alleges that Kinder sexually harassed him, and that Bill Griswold failed to act to remedy the harassment, although he had actual knowledge of the situation. Plaintiff alleges further that he was terminated in retaliation for his complaints of sexual harassment, and in retaliation for complaining that Fresenius had produced and shipped defective and dangerous products.

Plaintiff has brought an eight-count amended complaint on the above allegations. In Count I he alleges sex discrimination in violation of federal law. In Count II he alleges retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964. In Counts III and IV he alleges sex harassment under Ohio law. In Count V he alleges discharge in violation of Ohio public policy. In Count VI he alleges negligent infliction of emotional distress. In Count VII he alleges intentional or reckless infliction of emotional distress. And in Count VIII he alleges a negligent or intentional failure to provide a safe work environment.

Defendants have moved to dismiss many of these counts. Individual Defendants Kinder and Griswold have moved to dismiss Counts I, II and IV on the ground that there is no individual liability under Title VII or Ohio employment discrimination law. All Defendants have moved to dismiss Counts IV through VII on the ground that those causes of action either are procedurally barred, do not exist under Ohio law, or are insufficiently pled. The Court addresses Defendants' arguments below.

II. DISCUSSION

A. Motions to Dismiss Generally

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b), the function of the Court is to test the legal sufficiency of the complaint. In scrutinizing the complaint, the Court is required to accept the allegations stated in the complaint as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984), while viewing the complaint in a light most favorable to the plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). The Court is without authority to dismiss the claims unless it can be demonstrated beyond a doubt that the plaintiff can prove no set of facts that would entitle it to relief Conley v. Gibson, 355 U.S. 41,45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Westlake, supra, at 858. See generally 2A James W. Moore, Moore's Federal Practice, ¶ 12.07[2.-5] (2d ed.1994).

B. Counts I & II: Individual Liability Under Title VII

Individual Defendants Kinder and Griswold have moved to dismiss Counts I and II of Plaintiff's amended complaint on the ground that Title VII does not impose liability on individual employees. For purposes of assigning liability, Title VII defines an "employer" as "a person engaged in an industry affecting commerce ... and any agent of such a person ..." 42 U.S.C. § 2000e(b). The parties disagree as to whether this definition permits a plaintiff to maintain an action for damages under Title VII against his employer's agent sued in his individual capacity.

The almost universal weight of recent authority has held that the purpose of the agent provision was solely to incorporate respondeat superior liability into the statute, and an agent cannot be sued for damages in his individual capacity. Every one of the nine Circuit Courts to address the issue since 1991 has so held. See, e.g., Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir., 1996); Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir.1995); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995), cert. denied, 117 S.Ct. 110, 136 L.Ed.2d 63 (1996); Gary v. Long, 59 F.3d 1391, 1400 (D.C.Cir.), cert. denied, ___ U.S. ____, 116 S.Ct. 569, 133 L.Ed.2d 493 (1995); EEOC v. AIC Security Investigations, 55 F.3d 1276, 1281 (7th Cir.1995); Lenhardt v. Basic Inst. of Tech., 55 F.3d 377, 381 (8th Cir.1995); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (per curiam). The Fourth Circuit has held that an agent of the corporate employer is directly liable for his actions that violate Title VII, Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir.1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990) (en banc), but the continuing viability of that holding has been called into doubt by a recent Fourth Circuit ruling that there is no individual liability for damages in a suit under ADEA, Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.1994).

The Sixth Circuit has never ruled directly on the issue. In Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986), the Sixth Circuit assumed, without holding, that a plaintiff could bring suit against an individual under Title VII for the purpose of holding that the plaintiff's failure to specify whether her claims against the individual defendants were brought under Title VII or 42 U.S.C. § 1981 did not automatically render her entire suit unreasonable and vexatious. But District Courts within the Sixth Circuit generally, and in the Northern District of Ohio specifically, have never found Jones to be binding precedent on the issue of individual liability under Title VII.¹ On the contrary, they have generally adopted the near-universal rule that there is no individual liability under Title VII for employees. See, e.g., Czupih v. Card Pak, 916 F.Supp. 687, 690-91 (N.D.Ohio 1996); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 292 (N.D.Ohio 1995); Bremiller v. Cleveland Psychiatric Inst., 879 F.Supp. 782, 788 (N.D.Ohio 1995); Wilson v. Wayne County, 856 F.Supp. 1254, 1264-65 (M.D.Tenn.1994), remanded, 69 F.3d 538 (6th Cir.1995); Lowry v. Clark, 843 F.Supp. 228, 231 (E.D.Ky. 1994); contra Kramer v. Windsor Park Nursing Home, 943 F.Supp. 844, 850 (S.D.Ohio 1996); Johnson v. University Surgical Group Assocs., 871 F.Supp. 979, 983 (S.D.Ohio 1994). This Court finds both the reasoning and weight of the above-cited authority persuasive. Defendants' motion to dismiss Counts I and II of Plaintiff's amended complaint against Defendants Kinder and Griswold is granted.

C. Count IV: Sex Harassment and Ohio Rev.Code § 4112. 99

All Defendants have moved to dismiss Count IV of Plaintiff's amended complaint, which states a claim under Ohio Rev.Code § 4112.99. Section 4112.99 makes both damages and equitable relief available to remedy employment discrimination in violation of the Ohio Civil Rights law, Ohio Rev.Code ch. 4112. Defendants argue that Plaintiff cannot sue under § 4112.99 because filing a charge with the Ohio Civil Rights Commission ("OCRC") or the Equal Employment Opportunity Commission ("EEOC") precludes a plaintiff from bringing a subsequent suit under § 4112.99. Defendants Kinder and Griswold argue further that a suit cannot be brought under them individually under § 4112.99, because the same standard for liability attaches under § 4112.99 as under Title VII and Title VII does not impose liability for sex discrimination on individual employees.

I. Election of Remedies

To support their argument that Plaintiff must elect between her administrative remedies and the option of bringing suit under § 4112.99, Defendants cite to three Ohio cases holding that a plaintiff who files an age discrimination charge with OCRC or EEOC cannot thereafter bring suit under § 4112.99. Those holdings were based on a construction of Ohio Rev.Code § 4112.08, which provides that a plaintiff filing an administrative charge "is, with respect to the unlawful discriminatory practices complained of, barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code." Both § 4112.14 and § 4112.02(N) pertain exclusively to age discrimination.

There is no parallel statute forcing an Ohio plaintiff to elect between remedies under Title VII and § 4112.99 in the context of race or sex discrimination claims. An Ohio Court of Appeals has expressly held that a plaintiff bringing an action for sex discrimination may bring suit under both statutes, Larkins v. G.D. Searle & Co., 68 Ohio App.3d 746, 750-51, 589 N.E.2d 488, 491 (1991 ), and this Court's research indicates that District Courts routinely permit such claims to go forward, see, e.g., Kramer v. Windsor Park Nursing Home, 943 F.Supp. 844 (S.D.Ohio 1996); Soreo-Yasher v. First Office Management, 926 F.Supp. 646 (N.D.Ohio 1996); Spath v. Berry Plastics Corp., 900 F.Supp. 893 (N.D.Ohio 1995); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 292 (N.D.Ohio 1995). Defendants' motion to...