Osman v. Isotec, Inc.

• Decision Date: 26 March 1997
• Docket Number: No. C-3-96-371.,C-3-96-371.
• Citation: 960 F.Supp. 118
• Parties: Nasser OSMAN, Plaintiff, v. ISOTEC, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

960 F.Supp. 118

Nasser OSMAN, Plaintiff, v. ISOTEC, INC., et al., Defendants.

No. C-3-96-371.

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

March 26, 1997.

Cheryl Dayne Grant, Cincinnati, OH, for plaintiff.

Robert Thomas Dunlevey, Dunlevey, Mahan & Furry, Dayton, OH, Eric G. Kussoy, Kelly Drye & Warren, L.L.P., New York City, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL DISMISSAL

DLOTT, District Judge.

This matter is before the Court on the Defendants' Motion for Partial Dismissal (doc. # 8). For reasons more fully explained below, the Defendants' Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

The following description summarizes the facts as presented in the Plaintiff's complaint.

On or about October 5, 1994, the Defendants hired the Plaintiff as a temporary worker through a temporary employment agency. On or about January 3, 1995, the Defendants' hired the Plaintiff as a permanent salaried employee as an Analytic Chemist. The Plaintiff's supervisor is the individual Defendant in this action, Sze-Cheung Ho.

On June 23, 1995, Isotec's President, Vincent Avona, informed the Plaintiff that he would be laid off. The Plaintiff was the only employee laid off at that time and he was apparently informed that he was selected for lay off because he was the most newly hired employee. The Defendant Isotec hired "two or more native white Americans" on or about three weeks before and/or subsequent to the Plaintiff's termination.

The Plaintiff alleges he was subjected to a racially hostile work environment and that the Defendants discriminated against him because of his race, national origin and/or ancestry. The Plaintiff further alleges that the hostility of his work environment intensified immediately following the Oklahoma City federal building bombing.

The Plaintiff is alleging violations of Title VII, 42 U.S.C. § 1981, Ohio Rev.Code § 4112.02, and is also alleging negligent and/or intentional infliction of emotional distress and tortious interference with a business relationship. The Plaintiff seeks declarative relief, injunctive relief, and monetary damages.

II. LEGAL STANDARDS

A. Fed.R.Civ.P. 12(b)(6)

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the nonmovant. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). While a court may not grant a Rule 12(b)(6) motion based on disbelief of a complaint's factual allegations, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir.1990), the court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made, the facts alleged are insufficient to state a claim, or there is an unsurmountable bar on the face of the complaint. Because a Rule 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it, Haffey v. Taft, 803 F.Supp. 121, 127 (S.D.Ohio 1992)(citing Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983)), the focus is on whether the plaintiff is entitled to offer evidence to support the claims, rather than on whether the plaintiff will ultimately prevail. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686; Haffey, 803 F.Supp. at 127.

B. Conversion of 12(b)(6) Motion to Motion for Summary Judgment

The Court has considered only the parties' filings in deciding this motion for partial dismissal; thus, this motion has not been converted to a motion for summary judgment. See Fed.R.Civ.P. 12(b).

C. Individual Liability Under Ohio Rev. Code § 4112.02

Ohio Rev.Code § 4112.02 sets forth unlawful discriminatory practices, and Ohio Rev. Code § 4112.99 authorizes a civil cause of action for violations of § 4112.02. In relevant part, § 4112.02 states: "It shall be an unlawful discriminatory practice ... [f]or any employer, because of race, color, religion, ... national origin, ... or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment."

Ohio Rev.Code § 4112.01 defines the key term "employer." "`Employer' includes ... any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of the employer." Id. (emphasis added).

The Plaintiff argues that he states a claim upon which relief may be granted against the individual Defendant Sze-Cheung Ho,¹ and that Mr. Ho should be held individually liable for his alleged discriminatory practices. There are at least two reasons why the Plaintiff states no claim under Ohio Rev.Code § 4112.02 against Mr. Ho.

First, employers themselves have long been found to be liable for discriminatory practices in employment. Likewise, employers have found themselves to be liable for the discriminatory practices of certain individuals, namely, their employees and agents through the doctrine of respondeat superior. However, individuals themselves generally have not been found liable in their individual capacity. The Plaintiff argues that the clause "any person acting ... in the interest of the employer" authorizes a cause of action against an individual in his or her individual capacity.

The clause "any person acting ... in the interest of the employer" was meant merely to clarify that respondeat superior liability could be found—that employers may be found liable for the acts of their employees or agents through the doctrine of respondeat superior for the discriminatory practices of their employees or agents. Accord, Gausmann v. City of Ashland, 926 F.Supp. 635, 640-41 (N.D.Ohio 1996).

Second, the Supreme Court of Ohio has not addressed the issue of whether an individual employee may be held individually liable for discrimination or retaliation under Ohio Rev.Code § 4112.02. As a general matter, however, the Ohio Supreme Court has determined that federal case law interpreting Title VII is applicable to cases involving alleged violations of Ohio Rev. Code § 4112.02. Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St.2d 192, 421 N.E.2d 128, 131 (1981).

Thus, in light of the overwhelming authority rejecting individual liability under Title VII as outlined below, the Court finds that there is no basis for individual liability under Ohio Rev.Code § 4112.02. Accordingly, the Plaintiff's "Count Four" is hereby DISMISSED for failure to state a claim upon which relief may be granted.

D. Individual Liability Under Title VII

At least nine of the circuits have held that an employer's agent may not be held individually liable under Title VII. Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir.1996); Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.1996); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996) (interpreting the term "employer" under Title VII and the ADA); Williams v. Banning, 72 F.3d 552, 555 (7th Cir.1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C.Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 569, 133 L.Ed.2d 493 (1995); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.) (interpreting the term "employer" under the ADEA), cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); Grant v. Lone Star Co., 21 F.3d 649, 652-53 (5th Cir.), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); see also Lenhardt v. Basic Institute, 55 F.3d 377, 381 (8th Cir.1995) (holding that no individual liability exists under Missouri statute similar to the ADA).

Recent decisions of district courts within the Sixth Circuit have also found that there is no individual liability under Title VII. Gausmann, 926 F.Supp. at 640 n. 4; Czupih v. Card Pak Inc., 916 F.Supp. 687, 690 (N.D.Ohio 1996); Frizzell v. Southwest Motor Freight, Inc., 906 F.Supp. 441, 448 (E.D.Tenn.1995); Winston v. Hardee's Food Systems Inc., 903 F.Supp. 1151, 1155 (W.D.Ky.1995); Redman v. Lima City School Dist. Bd. of Educ., 889 F.Supp. 288, 292 (N.D.Ohio 1995). But see Johnson v, University Surgical Group Associates, 871 F.Supp. 979, 981-84 (S.D.Ohio 1994) (Judge Spiegel) (recognizing a split among the circuits but holding that a co-employee supervisor is personally and individually liable under Title VII for his or her own personal and individual acts of intentional discrimination); Kramer v. Windsor Park Nursing Home Inc., 943 F.Supp. 844, 850 (S.D.Ohio 1996) (Judge Spiegel) (following the rationale set forth in Johnson).

The Sixth Circuit explicitly declined to decide this issue in a recent unpublished opinion, Wilson v. Nutt, 69 F.3d 538, 1995 WL 638298 (6th Cir.1995), but in a footnote stated that none of the Sixth Circuit opinions commonly cited both for and against individual liability "deals directly with the question of individual liability under Title VII." Id. at *2 n. 3. In the light of the overwhelming weight of recent authority, the Court finds that under Title VII a supervisor may be sued only in his or her official capacity as the agent of the employer, and not as an individual.

III. THE PLAINTIFF'S STATE LAW CLAIMS

A. Supplemental Jurisdiction over State Law Claims

This Court has supplemental jurisdiction over the Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

B. Compensability of Pl...