Redding v. Truck Service, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WESLEY REDDING, ) Case No.: 1:22 CV 1333

)

Plaintiff ) JUDGE SOLOMON OLIVER, JR.

)

v. )

)

TRUCK SERVICE, INC., )

)

Defendant ) ORDER

Currently pending before the court in the above-captioned case is Defendant Truck Service,

Inc.’s (“Defendant” or “TSI”) Motion for Partial Judgment on the Pleadings (“Motion”) (ECF No.

11). For the reasons that follow, the court grants Defendant’s Motion and dismisses Counts III, IV,

VI, VII, VIII, IX, X, XI, XII, XIII, and XV of Plaintiff Wesley Redding’s (“Plaintiff” or “Redding”)

Complaint.

I. BACKGROUND

TSI hired Plaintiff as a Service Advisor at its Valley View, Ohio location on August 1, 2016.

(Compl. ¶ 5, ECF No. 1-1.) Plaintiff was hired as an at-will employee. (Id. ¶ 6.) On June 9, 2017, TSI

moved Plaintiff to the role of Parts Stock Clerk/Penske. (Id. ¶ 36.) Plaintiff held that position until

TSI terminated his employment on August 3, 2020. (Id. ¶ 7.) At all times relevant to Redding’s

Complaint, TSI employed Matt Lewis (“Lewis”) as Regional Manager, Jim Lee (“Lee”) as Assistant

General Manager at its Valley View location, Don Snyder (“Snyder”) as a Service Advisor at its

Valley View location, and Bruce Zavotka (“Zavotka”) as an Outside Sales Representative at its

Superior Avenue and Valley View locations. (Id. ¶¶ 8–11.)

On June 21, 2022, Plaintiff filed a Complaint (ECF No. 1-1) in the Cuyahoga County Court

of Common Pleas alleging, in relevant part, the following violations by TSI: gender discrimination

(Count III); racial discrimination (Count IV); wrongful termination in violation of public policy

(Count VI); intentional tort (Count VII); civil assault (Count VIII); intentional infliction of emotional

distress (“IIED”) (Count IX); negligent infliction of emotional distress (“NIED”) (Count X);

interference with a business relationship (Count XI); slander per se/per quod (Count XII); respondeat

superior (Count XIII); and breach of employee contract (Count XV). On July 28, 2022, TSI removed

the action to federal court under 28 U.S.C. §§ 1331, 1367, 1441(a), and 1446. (Notice of Removal,

ECF No. 1.)

On September 9, 2022, TSI filed a Motion for Partial Judgment on the Pleadings (ECF No.

11) under Federal Rule of Civil Procedure 12(c). TSI seeks dismissal of Counts III, IV, VI, VII, VIII,

IX, X, XI, XII, and XV because they are based on the conduct of employees who were not acting

within the scope of their employment by TSI, and otherwise fail to allege sufficient facts to give rise

to liability for TSI. (Mot. at 2, ECF No. 11.) TSI also argues that Counts VII and XII are time-barred,

and that Count XIII must be dismissed because respondeat superior is not an independent cause of

action. Id. Redding submitted a Response (ECF No. 13) to the Motion on October 21, 2022, and TSI

entered a Reply (ECF No. 14) on November 4, 2022.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the

pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” The standard for

evaluating a motion for judgment on the pleadings is identical to the standard a court applies to a

motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See

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Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511–12 (6th Cir. 2001); Tinney v. Richland Cty., No.

1:14 CV 703, 2015 WL 542415, at *3 (N.D. Ohio Feb. 10, 2015). The court examines the pleadings

of the parties and evaluates the legal sufficiency of the plaintiff’s claim. See Mayer v. Mulod, 988

F.2d 635, 638 (6th Cir. 1993).

The United States Supreme Court clarified the law regarding what a plaintiff must plead in

order to survive a motion made pursuant to Rule 12(b)(6) in Bell Atl. Corp. v. Twombly, 550 U.S.

544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). When determining whether the plaintiff has

stated a claim upon which relief can be granted, the court must construe the complaint in the light

most favorable to the plaintiff, accept all factual allegations as true, and determine whether the

complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550

U.S. at 570. The plaintiff’s obligation “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Id. at 555. Even though a complaint need

not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right

to relief above the speculative level on the assumption that all the allegations in the Complaint are

true.” Id. A court is “not bound to accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

III. LAW AND ANALYSIS

A. Counts III and IV: Gender and Racial Discrimination

Plaintiff alleges that, due to gender and racial discrimination against him as a white male, he

suffered adverse employment actions including denial of raises and advancement opportunities,

“exceedingly long probationary periods,” and his ultimate termination. (Compl. ¶¶ 49, 58, ECF No.

1-1.) Plaintiff also asserts that TSI’s employees made derogatory racial and gender-related remarks

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in front of and to Plaintiff, with no corrective action take by TSI. (Id. ¶¶ 50, 57.) Generally, to

establish a prima facie case for reverse discrimination under Title VII of the Civil Rights Act of 1964

and/or under O.R.C. § 4112, a plaintiff must show “(1) that ‘background circumstances exist to

support the suspicion that the defendant is the unusual employer that discriminates against the

majority;’ (2) that Plaintiff ‘was qualified for the job;’ (3) that Plaintiff ‘suffered an adverse

employment decision;’ and (4) that Plaintiff was ‘treated differently than similarly situated

non-protected employees.’” Leavey v. City of Detroit, 467 F. App’x 420, 424 (6th Cir. 2012) (quoting

Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir.2008)); see also Courie v. Alcoa Wheel &

Forged Prod., 577 F.3d 625, 632 (6th Cir. 2009) (identifying the same elements in the context of

§ 4112 reverse discrimination claims). Defendant argues that Plaintiff’s Complaint fails to allege

“background circumstances” suggesting that TSI discriminates against white people or males, or that

similarly situated women or non-white people were treated differently. (Reply at 2, ECF No. 14.)

Turning first to Plaintiff’s gender discrimination claim, the court finds that Plaintiff has failed

to plead facts sufficient to support a prima facie case that reverse discrimination precipitated his

termination or any other adverse employment action. Plaintiff alleges that Lee told Plaintiff, in front

of Lewis, Zavotka, and Snyder, that the “first time one female advisor walks through that door,

you’re gone.” (Compl. ¶¶ 47–48, ECF No. 1-1.) Plaintiff provides no further supporting facts beyond

conclusory statements that TSI undertook adverse employment actions against him for discriminatory

reasons, and that TSI failed to reprimand its employees for other, unspecified gender-related remarks.

(Id. ¶¶ 49–51.) Plaintiff does not plead “background circumstances” indicating that TSI discriminates

against males, nor does he plead facts suggesting that similarly situated female employees were

treated differently. For these reasons, Count III of Plaintiff’s Complaint must be dismissed.

Plaintiff has also failed to establish a prima facie case that reverse racial discrimination

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motivated his termination or any other adverse employment action. Plaintiff alleges that in 2018, TSI

hired David Bowden, a younger African-American man with less experience than Plaintiff, as a

Service Advisor. (Compl. ¶¶ 53–54.) TSI had previously demoted Plaintiff from Service Advisor to

Parts Stock Clerk/Penske on June 9, 2017. (Id. ¶ 36.) Plaintiff also asserts that Lewis referred to

Bowden as “Black Wes” on March 11 and March 12, 2020. (Id. ¶¶ 56–57.) Plaintiff claims that he

was overlooked for the Service Advisor position due to his race, but he does not allege any facts that

connect his removal from that position to Bowden’s selection for the position, which did not occur

until at least six months later. Plaintiff does not assert that he was even seeking the Service Advisor

position at the time Bowden was hired, and the “Black Wes” comments were made at least 15

months after Bowden was hired and almost three years after Plaintiff was removed as a Service

Advisor. The facts pleaded therefore do not indicate that Redding and Bowden were similarly

situated. Furthermore, Plaintiff does not plead sufficient “background circumstances” to suggest that

TSI discriminated against white employees. For these reasons, Count IV of Plaintiff’s Complaint

must be dismissed.

B. Count VI: Wrongful Termination in Violation of Public Policy

To successfully plead a claim for wrongful termination in violation of public policy under

Ohio law, a plaintiff must show:

1. That [a] clear public policy existed and was manifested in a state

or federal constitution, statute or administrative regulation, or in the

common law (the clarity element).

2. That dismissing employees under circumstances like those

involved in the plaintiff’s dismissal would jeopardize the public

policy (the jeopardy element).

3. The plaintiff’s dismissal was motivated by conduct related to the

public policy (the causation element).

4. The employer lacked overriding legitimate business justification

for the dismissal (the overriding justification element).

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Collins v. Rizkana, 73 Ohio St. 3d 65, 69–70 (Ohio 1995) (quoting H. Perritt, The Future of Wrongful

Dismissal Claims: Where Does Employer Self Interest Lie?, 58 U. CIN. L. REV. 397, 398–399

(1989)). The “clarity” and “jeopardy” elements are “questions of law to be determined by the court.”

Id. at 70.

Defendant argues that Plaintiff has not established the jeopardy element of his wrongful

discharge claim, because the “State antidiscrimination laws” Plaintiff references as the source of the

policy violated by his termination themselves contain adequate remedies for discriminatory

termination. (Mot. at 11–12, ECF No. 11.) Plaintiff acknowledges in his Response that “anti-

discrimination laws including workplace sexual harassment, age discrimination, and racial

discrimination are all protected by existing public policy[,]” but contends that the jeopardy element

is nonetheless satisfied because of “the additional circumstances of an employer failing to react to

constant employee requests to take action against clearly discriminatory practices[.]” (Resp. at 7,

ECF No. 13.) Defendant asserts in its Reply that there is no legal authority for Plaintiff’s explanation,

and that the statutory bases of Plaintiff’s stated public policy interest are either protected by statutory

remedies (O.R.C. § 4112 and Title VII), or inapplicable to non-government corporations (42 U.S.C.

§ 1983).

Defendant’s interpretation of the law is correct, and Plaintiff’s claim for wrongful termination

therefore fails. This court has held that, under Ohio law, a plaintiff cannot maintain a separate

wrongful discharge claim based on actions that are “1) prohibited by federal and state employment

law statutes and 2) for which those statutes provide adequate remedies.” Morr v. Kamco Indus., Inc.,

548 F. Supp. 2d 472, 484 (N.D. Ohio 2008) (citing Leininger v. Pioneer Nat’l Latex, 115 Ohio St.3d

311, 317 (Ohio 2007)). Ohio Revised Code § 4112, which embodies the state’s antidiscrimination

law, provides remedies for discriminatory acts, as does Title VII. See O.R.C. § 4112.99 (“Whoever

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violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate

relief.”); Carrasco v. NOAMTC Inc., 124 F. App’x 297, 304 (6th Cir. 2004) (“Because [Plaintiff] has

a remedy available to him under both Title VII and the OCRA, we find that he cannot have that same

claim [for wrongful discharge] under Ohio common law.”). Plaintiff concedes that his

antidiscrimination interests “are all protected by existing public policy.” (Resp. at 7, ECF No. 13.)

Plaintiff thus cannot establish the jeopardy element of his wrongful discharge claim, and Count VI

must therefore be dismissed.

C. Count VII: Intentional Tort

To establish an employer’s liability for an intentional tort under Ohio law, a plaintiff must

show that “the employer committed the tortious act with the intent to injure another or with the belief

that the injury was substantially certain to occur.” O.R.C. § 2745.01. The statute further provides that

“‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to

suffer an injury, a disease, a condition, or death.” Id. The scope of an employer’s liability for

intentional torts “cannot be stretched to include accidental injuries caused by the gross, wanton,

wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other

misconduct of the employer short of a conscious and deliberate intent directed to the purpose of

inflicting an injury.” Lucio v. Levy Env’t Servs. Co., 173 F. Supp. 3d 558, 567 (N.D. Ohio 2016),

aff’d, 670 F. App’x 889 (6th Cir. 2016) (quoting Kaminski v. Metal & Wire Prods. Co., 125 Ohio

St.3d 250, 263, 273–74 (Ohio 2008)).

Plaintiff has not alleged a plausible claim of intentional tort. Plaintiff asserts that Defendant

“failed to follow the mandated protocols by requiring two (2) infected individuals who were

displaying obvious symptoms of COVID 19 to continue to work their shift without wearing any

protective gear,” and that Plaintiff was infected with COVID-19 as a result. (Compl. ¶ 88, ECF No.

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1-1.) Plaintiff contends that Defendent “exhibited a conscious disregard for COVID-19 protocols ...

thereby acting with deliberate intent to cause injury, disease, condition or death to employees[,]” but

disregard of protocols does not, without further supporting factual assertions, exhibit TSI’s deliberate

intent that its employees become infected with COVID-19. (Id. ¶ 92.) Plaintiff also describes

Defendant’s failure to adhere to COVID-19 protocols as “neglect” and “willful, wanton and reckless,

malicious and/or in complete disregard to the rights of the Plaintiff,” but these characterizations again

fall short of the deliberate intent required to establish a colorable claim for intentional tort. (Id. ¶¶

93, 95.) Plaintiff provides no factual assertions suggesting that TSI intended for him or any other

employee to become infected. In his Response, Plaintiff only maintains in conclusory fashion that

“[t]he allegations support the contention that the employer specifically desired to injure the

employee.” (Resp. at 7, ECF No. 13.) The court finds that this is not the case, and Count VII must

therefore be dismissed.

D. Count VIII: Civil Assault

Plaintiff’s civil assault claim is time-barred. Ohio law requires that a civil action for assault

be commenced within one year after the cause of action accrues. See O.R.C. § 2305.111(B). In cases

such as this where Plaintiff knew the identify of those who allegedly committed the assault at the

time of the alleged assault, the cause of action accrues on the date on which the alleged assault

occurred. Id. Plaintiff’s Complaint identifies a number of alleged assaults dating from March 29,

2017 to June 11, 2020. (Compl. ¶¶ 99–103, ECF No. 1-1.) These and any other alleged assaults

occurring before his termination on August 3, 2020 would have occurred nearly two years before

Redding filed his Complaint on June 21, 2022. (Id. ¶ 7.) Plaintiff’s civil assault claim was thus filed

after the expiration of the applicable limitation period. Plaintiff maintains in his Response that the

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court should preserve the claim so that discovery may “verify whether additional assaults had taken

place that may be within the applicable statute of limitations[,]” but purely speculative violations

cannot save his claim. (Resp. at 8, ECF No. 13.) Count VIII must therefore be dismissed.

E. Count IX: Intentional Infliction of Emotional Distress

To establish a claim for IIED under Ohio law, a plaintiff must show that,

(1) the defendant intended to cause emotional distress or knew or

should have known that its conduct would result in serious emotional

distress to the plaintiff; (2) defendant's conduct was outrageous and

extreme and beyond all possible bounds of decency and was such

that it can be considered as utterly intolerable in a civilized

community; (3) defendant's conduct was the proximate cause of

plaintiff's psychic injury; and (4) plaintiff's emotional distress was

serious and of such a nature that no reasonable person could be

expected to endure it.

Talley v. Fam. Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir. 2008) (quoting Ekunsumi

v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557, 698 (Ohio Ct. App. 1997)). Liability for IIED

does not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other

trivialities ... plaintiffs must necessarily be expected and required to be hardened to a certain amount

of rough language[.]” Yeager v. Loc. Union, 6 Ohio St. 3d 369, 375 (Ohio 1983), abrogated on other

grounds by Welling v. Weinfeld, 113 Ohio St. 3d 464 (Ohio 2007) (quoting Restatement (Second)

of Torts § 46 cmt. d (AM. LAW INST. 1965)).

Plaintiff has not alleged a plausible claim of IIED. Plaintiff does not specify what statements

and/or incidents in particular support his IIED claim, but refers generally to sexual harassment and

a “hostile work environment.” (Compl. ¶¶ 111–12, ECF No. 1-1.) In Count I of his Complaint, which

claims sexual harassment in a hostile work environment, Redding alleges that Lewis, Snyder, Lee,

and Zavotka made offensive sexual remarks about Redding’s body and sexual preference, such as

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stating that Plaintiff “sucks dick[,]” telling Plaintiff to “pull down your pants, man[],” and

commenting that Plaintiff was “having vagina issues.” (Id. ¶ 16.) In Count VIII alleging civil assault,

Plaintiff asserts that Lewis, Snyder, and Lee directed threats toward Plaintiff, such as stating intent

to “beat Plaintiff’s ass[,]” “busting his kneecaps,” and “sticking Plaintiff with a knife[.]” (Id. ¶ 99.)

These statements, while abhorrent, fall squarely within the exception to IIED liability for “insults,

indignities, [and] threats[.]” Restatement (Second) of Torts § 46 cmt. d (AM. LAW INST. 1965).

Furthermore, Redding’s allegations of “mental anguish ... that no reasonable man could be expected

to endure” and “emotional injury [] so severe and debilitating [] that a reasonable person ... would

be unable to cope” are conclusory and lack indicia of the emotional injury suffered. See Hout v. City

of Mansfield, 550 F. Supp. 2d 701, 744 (N.D. Ohio 2008) (citing Paugh v. Hanks, 6 Ohio St.3d 72,

78 (Ohio 1983) (“A non-exhaustive litany of some examples of serious emotional distress should

include traumatically induced neurosis, psychosis, chronic depression, or phobia.”)) In his Response,

Plaintiff argues that Defendant has downplayed the seriousness of his emotional distress, and that

a jury would disagree with Defendant’s assessment. (Resp. at 9, ECF No. 13.) This argument cannot

save a claim that is not sufficiently alleged in Plaintiff’s Complaint. For these reasons, Count IX must

be dismissed.

F. Count X: Negligent Infliction of Emotional Distress

This court has recognized that “Ohio courts do not recognize a separate tort for negligent

infliction of emotional distress in the employment context.” Mikan v. Arbors at Fairlawn Care,

L.L.C., 2015 WL 5604666, at *2 (N.D. Ohio Sept. 23, 2015) (quoting Williams v. York Int’l Corp.,

63 F. App’x 808, 814 (6th Cir. 2003)). Ohio courts have only found exception to this rule where a

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plaintiff employee witnesses an accident and suffers serious and foreseeable emotional injury as a

result. See, e.g., Williams, 63 F. App’x at 814 (“[I]n Ohio, ‘[l]iability for negligent infliction of

emotional distress arises where a bystander to an accident suffers serious and foreseeable emotional

injuries.’”); Schultz v. Barberton Glass Co., 447 N.E.2d 109 (Ohio 1983) (finding NIED without a

contemporaneous physical injury where a large sheet of glass crashed into the windshield of the

plaintiff’s vehicle and the plaintiff suffered “serious emotional distress” as a result).

Plaintiff has not alleged a plausible claim of NIED. Plaintiff asserts that he “witnessed and/or

experienced a real or impending danger to himself and other employees[,]” but he provides no detail

as to the source or nature of that danger, and at any rate, observing circumstances that present the

danger of an accident occurring is distinct from witnessing an actual accident. (Compl. ¶ 118.) The

allegations in this Count are otherwise conclusory and devoid of factual support. Furthermore,

Plaintiff concedes in his Response that “he did not witness an accident[,]” but contends that “the

egregious actions of his employer were so serious and foreseeable that one could only conclude that

emotional injuries would result.” (Resp. at 9, ECF No. 13.) Besides the absence of factual detail as

to what actions TSI actually took that may have caused Redding emotional distress, the mere fact that

Plaintiff was not actually a bystander to any accident is dispositive of his claim under Ohio law. See

Williams, 63 F. App’x at 814. Count X is therefore dismissed.

G. Count XI: Interference with Business Relationships

To establish a claim for tortious interference with a business relationship under Ohio law, a

plaintiff must show, “(1) a business relationship; (2) the wrongdoer’s knowledge of the relationship;

(3) the wrongdoer’s intentional and improper action taken to prevent a contract formation, procure

a contractual breach, or terminate a business relationship; (4) a lack of privilege; and (5) resulting

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damages.” Barrio Bros., LLC v. Revolucion, LLC, 2020 WL 3547014, at *7 (N.D. Ohio June 30,

2020) (quoting N. Chem. Blending Corp., Inc. v. Strib Indus., Inc., 2018 WL 4043487, at *6 (Ohio

Ct. App. Aug. 23, 2018)). The Sixth Circuit has held that “[a] vague assertion that a party interfered

with certain unspecified business relationships is insufficient to state a claim.” Id. (citing Wilkey v.

Hull, 366 F. App’x 634, 638 (6th Cir. 2010)).

Plaintiff has not alleged a plausible claim of tortious interference in a business relationship.

First, Plaintiff alleges that TSI employee Don Snyder stated that he was “going to say bad things”

about Plaintiff, and that he was going to damage Plaintiff’s reputation with other employers, but

Plaintiff does not allege any specific actions that Snyder or others actually took to interfere with a

business relationship of Plaintiff’s. (Compl. ¶ 125, ECF No. 1-1.) Plaintiff alleges that he

“believe[s]” that Defendant “provid[ed] inaccurate or otherwise false statements about the Plaintiff

to potential employers of the Plaintiff[,]” but that is just the sort of vague allusion to an unspecified

business relationship that, without more specific factual support, cannot give rise to a colorable

tortious interference claim. (Id. ¶ 126.) Redding’s only argument in response is that discovery might

“allow for the acquisition of information that may lead to the further evolution of the claims[,]” but

he cannot rely on potential future discovery to shore up a claim that is not plausible on the face of

his Complaint. (Resp. at 10, ECF No. 13.) For these reasons, Count XI must be dismissed.

H. Count XII: Slander Per Se/Per Quod

To establish a claim for slander under Ohio law, a plaintiff must show, “(1) the defendant

made a false and defamatory statement concerning another; (2) there was an unprivileged publication

to a third party; (3) there exists fault amounting at least to negligence on the part of publisher; and

(4) there is either accountability of the statement irrespective of special harm or the existence of

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special harm caused by the publication.” Goff v. Robertson, 2014 WL 6469347, at *4 (N.D. Ohio

Nov. 17, 2014) (citing Watson v. Highland Ridge Water & Sewer Assn., Inc., 2013 WL 1749729, at

*6 (Ohio App. 4th Dist. April 10, 2013)). For a verbal statement to constitute slander per se, it must

“consist of words which import an indictable criminal offense involving moral turpitude or infamous

punishment, impute some loathsome or contagious disease which excludes one from society or tends

to injure one in his trade or occupation.” Kanjuka v. MetroHealth Med. Ctr., 783 N.E.2d 920, 927

(Ohio Ct. App. 2002). Slander per quod occurs when “a statement with an apparently innocent

meaning becomes defamatory through interpretation or innuendo.” Id.

Redding has not alleged a plausible claim of slander per se or per quod. He alleges that his

coworkers “harass[ed] him in front of other coworkers[,] customers and suppliers of the business,

including representatives of PENSKE[,]” but does not identify specifically any false statements

made, or to whom they were made. (Compl. ¶ 129, ECF No. 1-1.) Plaintiff also alleges that

“Defendant’s employees stated they would retaliate against him in the form of lies and bad reviews

in the event he was discharged from the company[,]” but the threat of future slander is not itself

slander, and Plaintiff does not allege that his former coworkers made any false statements about him

following his termination. (Id. ¶ 130.) Plaintiff argues in his Response that discovery would

strengthen his claims, because he “expect[s] that the Defendant fielded inquiries from potential future

employers of the Plaintiff[,]” but Plaintiff’s mere expectations do not excuse his failure to allege a

colorable claim for slander per se or per quod in his Complaint.

Furthermore, a claim for slander based on the statements alluded to in Plaintiff’s complaint

would be time-barred. Ohio law requires that an action for slander be commenced within one year

after the cause of action accrues. See O.R.C. § 2305.11(A). The Sixth Circuit has held that an action

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for slander accrues “when the allegedly defamatory words are first spoken or published regardless

of the aggrieved party’s knowledge of them.” Friedler v. Equitable Life Assur. Soc. of U.S., 86 F.

App’x 50, 53 (6th Cir. 2003) (quoting Sabouri v. Ohio Dep't of Job & Fam. Serv., 763 N.E.2d 1238,

1240–41 (Ohio Ct. App. 2001)). Plaintiff does not provide specific dates for the statements he

broadly alleges, but they would have occurred before his termination on August 3, 2020, well over

a year before he filed his Complaint on June 21, 2022. Redding’s slander claim is therefore time-

barred. For these reasons, Count XII is dismissed.

I. Count XIII: Respondeat Superior

Defendant argues that Count XIII must be dismissed because respondeat superior is not a

standalone cause of action, but rather a theory of liability by which a plaintiff can impute liability

for torts committed by an employee to the employer. (Mot. at 22–23, ECF No. 11); see Restatement

(Third) Of Agency § 2.04 (2006) (“An employer is subject to liability for torts committed by

employees while acting within the scope of their employment.”). Plaintiff’s Complaint does not

allege any particular tortious actions of TSI’s employees for which he seeks to impute liability to TSI

under this Count. Plaintiff argues in his Response that Defendant’s argument is “better suited for a

Motion for Summary Judgment after the Discovery phase has been concluded[,]” but that assertion

cannot overcome Plaintiff’s failure to state an independent claim in this Count. Count XIII is

therefore dismissed.

J. Count XV: Breach of Employment Contract

Plaintiff alleges in Count XV that TSI’s actions violated certain terms of its Employee

Handbook (Compl. Ex. B) regarding overtime pay, retaliation, violence, and harassment. (Compl.

¶¶ 153–60, ECF No. 1-1.) Defendant argues that the Employee Handbook is not a contract and

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creates no rights or obligations binding TSI, citing § 101 of the Handbook which states:

Policies set forth in this handbook are not intended to create a

contract, nor are they to be construed to constitute contractual

obligations of any kind or a contract of employment between TSI and

any of its employees. The provisions of the handbook have been

developed at the discretion of management and, except for its policy

of employment-at-will, may be amended or cancelled at any time, at

TSI’s sole discretion.

(Compl. Ex. B § 101, ECF No. 1-1.) Plaintiff acknowledges this language in his Complaint, but

asserts that such a general disclaimer cannot nullify the more specific obligations set forth in the

handbook with terms such as “will” and “shall.” (Id. ¶¶151–52, 159.) He argues further in his

Response that this court should adopt the standard applied by the Minnesota Supreme Court in Hall

v. City of Plainview, 954 N.W.2d 254 (Minn. 2021), under which an employee handbook may

constitute an employment contract if “(1) the terms are definite in form; (2) the terms are

communicated to the employee; (3) the offer is accepted by the employee; and (4) consideration is

given.” Id. at 261 (citing Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 707 (Minn. 1992)).

Defendant responds that Hall was limited to handbook policies concerning employee compensation,

and that at any rate, that case is nonbinding here and contrary to Ohio case law which provides that

disclaimers in employee handbooks defeat breach of contract claims without exception. (Reply at

7, ECF No. 14.)

The applicable case law makes clear that TSI’s Employee Handbook is not a contract, and

Redding’s breach of contract claim therefore fails. The Sixth Circuit has denied breach of contract

claims premised on the provisions of employee handbooks that state they are not employee contracts,

and that establish that employment is at-will. See Beaver v. RGIS Inventory Specialists, Inc., 144 F.

App’x 452, 457 (6th Cir. 2005) (denying a breach of contract claim because the employee handbook

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stated that “this is not a contract and does not give rise to enforceable rights or obligations” and

therefore “[did] not create contractual rights”); DePrisco v. Delta Air Lines, Inc., 90 F. App’x 790,

796 (6th Cir. 2004) (denying a breach of contract claim where the employee handbook stated “that

[Plaintiff’s] employment was at-will and that [Defendant] reserved the right to amend or modify the

terms and conditions of employment at any time or for any reason”). TSI’s Employee Handbook

clearly states that “TSI may terminate the employment relationship at will at any time,” that the

Handbook policies “are not intended to create a contract,” and that those policies “may be amended

or cancelled at any time, at TSI’s sole discretion.” (Compl. Ex. B § 101, ECF No. 1-1.) This is

exactly the sort of disclaimer that the Sixth Circuit has found to preclude employee handbook

provisions from creating contractual obligations. Even if the exceptions set forth by the Supreme

Court of Minnesota in Hall applied, Redding’s claim would not qualify because the provisions upon

which he relies are not sufficiently “definite in form” to create enforceable contractual obligations.

For these reasons, Count XV must be dismissed.

IV. CONCLUSION

For the foregoing reasons, the court grants Defendant Truck Service, Inc.’s Motion for Partial

Judgment on the Pleadings (ECF No. 11). Accordingly, Counts III, IV, VI, VII, VIII, IX, X, XI, XII,

XIII, and XV are dismissed.

IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

June 14, 2023

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