Vigil v. STS Systems Integration, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SANDRA VIGIL, .

Plaintiff,

v. Case No. 3:18-cv-324

STS SYSTEMS INTEGRATION, JUDGE WALTER H. RICE

LLC,

Defendant. ,

DECISION AND ENTRY SUSTAINING DEFENDANT'S PARTIAL

MOTION TO DISMISS COUNTS 1, Il, Ill, IV, V, VEAND VIII (DOC, #5);

DISMISSAL OF THESE COUNTS IS WITHOUT PREJUDICE; PLAINTIFF

GRANTED LEAVE TO FILE AN AMENDED COMPLAINT WITHIN 14

DAYS SUBJECT TO THE STRICTURES OF FED. R. CIV. P. 11

Plaintiff, Sandra Vigil (“Vigil” or “Plaintiff”), has filed suit against her

former employer, Defendant, STS Systems Integration, LLC (“SSI” or

“Defendant”). The Complaint alleges sex discrimination in violation of Title Vil, 42

U. S. C. § 2000e-2(a)(1) and Ohio Revised Code § 4112.02(A), retaliation in

violation of Title VII, § 42 U.S.C. § 2000e-3(a) and Ohio Revised Code §4112.02(I),

along with state law claims for breach of contract and defamation.

Defendant has filed a Partial Motion to Dismiss Counts |, II, Ill, IV, V, Vland

Vill, Doc. #5. Plaintiff has filed a Memorandum in Opposition, Doc. #10, and

Defendant has filed a Reply, Doc. #14.

For the reasons set forth below, Defendant’s motion to dismiss Count | (Sex

Discrimination - Title VIl), Count Il (Sex Discrimination - O.R.C. § 4112), Count Ill

(Sex Discrimination — Title VII), Count IV (Sex Discrimination - O.R.C. 8 4112),

Count V (Retaliation — Title VII), Vi (Retaliation - O.R.C. § 4112) and Count VIII

(Defamation and Defamation Per Se) is sustained.

I. Allegations of the Complaint

Vigil is a lesbian female who worked under contracts, known as task orders,

entered into between Defendant and the federal government. She first began

working for SSI in September 2013. The Complaint alleges that she has was a top

employee “doubling her salary within her first year.” Doc. #1, PAGEID#2.

On August 5, 2016, John Joyce (“Joyce”), Senior Program Manager at SSI,

offered Plaintiff a contract position at Wright Patterson Air Force Base (“WPAFB”)

in Dayton, Ohio. Plaintiff accepted the offer. The position was contingent upon the

award of a task order. The task order was subsequently awarded to SSI and

Joyce sent a letter to Ruth Rutledge (“Rutledge”), the Commanding Officer

Representative at WPAFB, naming Plaintiff as the employee assigned. The period

of performance was September 26, 2016, to September 25, 2018. /d., PAGEID#3.

Vigil began work at WPAFB as a “Subject Matter Expert Il” in September

2016. /d.

The Complaint alleges that in May 2017, there was a meeting of employees

at WPAFB, attended by Joyce, during which “they disclosed Plaintiff's sexual

orientation without her permission.” /d. PAGEID#3. Following this meeting, Joyce

and Charles Meyers, Plaintiff's technical supervisor, “isolated Plaintiff by

instructing [her] to stay in her area and avoid speaking with her co-workers.” □□□

The Complaint also alleges that “Joyce and other employees interrogated and

harassed Plaintiff about her sexual orientation. /d. “Joyce characterized Plaintiff's

same-sex relationships as coerced and nonconsensual. He told her it was easier to

just quit her job than to try to stay on the job.” /a.

On June 2, 2017, Rutledge sent an email to Joyce. /a., PAGEID#4.

According to the Complaint, this email “contained false allegations against

Plaintiff made by SSI and other WPAFB employees.” /a. The email stated that

Plaintiff had engaged in inappropriate relationships with

government employees; assisted a government employee in

establishing an outside business; established a reputation of buying

gifts for government employees; exhibit[ed] frustration in the

workplace; exhibit[ed] disdain for government employees; demanded

money in return for gifts purchased; and played a significant role in

creating an unprofessional and toxic work environment.

Id.

Following this email, Joyce, on June 5, 2017, put Vigil on a performance

improvement plan (“PIP”). The Complaint alleges that the PIP was the result of

these “false allegations” as well as the result of Vigil’s relationship with a woman

and not for “any legitimate business reason.” /d.

Following the PIP, Vigil “sent Joyce a written rebuttal to the false

allegations in an attempt to protect her reputation and her job, but Joyce did not

pass her response on to the government.” /a.

In early June 2017, Plaintiff, as she had done previously, wanted to visit her

family and sought to work remotely requesting paid leave. SSI, however, denied

this request and Plaintiff could only take unpaid leave. /d.

On or about July 20, 2017, Vigil’s position under the task order was not

renewed by the government. Joyce, however, informed her “that SSI was slated

to receive a duplicate task order” and that a similar position at a reduced salary

was available. /d.

A letter of intent, on SSI stationery and contingent upon acceptance of the

“duplicate task order,” was signed by Vigil on August 28, 2017. Doc. #1-1,

PAGEID#12. Before signing, Joyce and Plaintiff discussed this offer, in person

and over the phone and, as requested, Plaintiff submitted a resume. Joyce

promised to pass it along in support of the task order application. /a., PAGEID#5.

In mid-September, Plaintiff was informed by Joyce that although the

government had awarded the task order to SSI, he had not submitted her resume

and that she would not be working under the task order. /d.

On September 25, 2017, Defendant terminated Plaintiff. /d.

Vigil filed a charge of discrimination with the EEOC on September 25, 2017,

and was issued a Notice of Right to Sue on June 27, 2018. /a., PAGEID#2.

Hi. Standard of Review

Federal Rule of Civil Procedure 8(a) provides that a complaint must contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” The complaint must provide the defendant with “fair notice of what the

... Claim is and the grounds upon which it rests.” Bel/ Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal

of a complaint on the basis that it “fail[s] to state a claim upon which relief can be

granted.” The moving party bears the burden of showing that the opposing party

has failed to adequately state a claim for relief. DirecTV, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.

1991)). The purpose of a motion to dismiss under Rule 12(b)(6) “is to allow a

defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief

even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635,

638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must “construe the

complaint in the light most favorable to the plaintiff, accept its allegations as true,

and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of

Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting 7reesh, 487 F.3d at 476).

Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the

complaint must contain “enough facts to state a claim to relief that is plausible on

its face.” Twombly, 550 U.S. at 570. Unless the facts alleged show that the

plaintiff's claim crosses “the line from conceivable to plausible, [the] complaint

must be dismissed.” /d. Although this standard does not require “detailed factual

allegations,” it does require more than “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action.” /d. at 555. “Rule 8... does not

unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Ashcroft v. lqbal, 556 U.S. 662, 678-79 (2009). Legal conclusions

“must be supported by factual allegations” that give rise to an inference that the

defendant is, in fact, liable for the misconduct alleged. /d. at 679.

lll. Legal Analysis

A. Sex Discrimination under Title Vil and R.C. § 4112 (Counts I and Il); Sex

Discrimination under Title VIl and R.C. § 4112 for Sexual Orientation

(Counts Ill and IV); Sex Discrimination under Title Vil and R.C. § 4112 for

Non-conformity with Traditional Female Gender Stereotypes (Counts |

and Il)

In Counts | and Il of her Complaint, Plaintiff has asserted claims for sex

discrimination pursuant to Title VII, 42 U. S. C. 2000e-2(a)(1) and pursuant to Ohio

Rev. Code § 4112.02(A). Under Title VII, an employer is prohibited from

discharging or otherwise discriminating against any individual “with respect to

his compensation, terms, conditions, or privileges of employment, because of

such individual's race, color, religion, sex, or national origin.” An unlawful

employment practice is established when the plaintiff demonstrates that race,

color, religion, sex, or national origin was a “motivating factor for any

employment practice, even though other factors also motivated the practice.” 42

U.S. C. § 2000e-2(m).

In addition to alleging a “traditional claim” for discrimination on the basis

of sex, Doc. #10, PAGEID#51, Counts | and II also allege sex discrimination under

Title Vil and state law due to “non|[-]conformity with traditional female gender

stereotypes.” Doc. #1, PAGEID##5 and 6. Counts Ill and IV of the Complaint allege

sex discrimination under Title VIl and R.C. § 4112 due to “sexual orientation.” Doc.

#1, PAGEID#7.

The Court will address each of Plaintiff's claims of sex discrimination under

Title Vil and R.C. § 4112.'

1. Sex Discrimination under Title Vil and R.C. § 4112 and for Non-

conformity with Traditional Gender Stereotypes (Counts | and Il) and

Sex Discrimination under Title Vil and R.C. § 4112 for Sexual Orientation

(Counts Ill and IV)

Plaintiff asserts that “[i]Jn support of her traditional sex discrimination

claims,” she has alleged that: “(1) she is a woman; (2) she was fully qualified for

her position—in fact, she was a top performer; and (3) Defendant took a series of

adverse employment actions against her, ultimately terminating her

employment.” Doc. #10, PAGEID#51. Vigil further claims that the Complaint

alleges both “direct evidence” of discrimination through her PIP, which she

contends was gender based, and “circumstantial evidence” because she was

“treated differently than similarly situated male employees who were not similarly

disciplined for the same alleged workplace issues.” 2

' Because Ohio Rev. Code §§ 4112.02 et seq. utilize the same analytical framework as Title

VII discrimination claims, “the federal case law governing Title VII actions is generally

applicable to cases involving alleged violations of § 4112.” Williams v. Ford Motor Co. 187

F.3d 533, 538 (6th Cir.1999) (citations omitted), as cited in Noble v. Brinker Int'l, Inc., 391

F.3d 715, 720 (6th 2004). As such, any discussion regarding Title VII is equally applicable

to Vigil’s state law claims for sex discrimination under § 4112.

? By virtue of Vigil’s pleading, it is assumed that she is arguing a disparate treatment as

opposed to a disparate impact claim. In a sex-based disparate treatment claim, the

plaintiff must allege that the employer has a discriminatory motive and treats some

employees less favorably than others on the basis of sex. Hughley v. General Motors

Corp., 52 F.3d 1364, 1370 (6th Cir.1995).

In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), the Supreme

Court unanimously held that the prima facie case under McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973) is an evidentiary standard, not a pleading

requirement. As such, a plaintiff alleging a federal employment-discrimination

claim is not required to plead facts establishing a prima facie case in order to state

a claim for relief. /o. at 510. Instead, the Court held that an employment-

discrimination plaintiff satisfies her pleading burden by drafting “’a short and

plain statement of the claim’ consistent with Federal Rule of Civil Procedure 8(a).”

fd. at 508, citing Fed. Rule Civ. Proc. 8(a}(2).2 The plaintiff, however, must still

satisfy the “plausibility” standard in Twombly and /qba/ in order to determine if

the factual allegations in a complaint support the legal conclusions. HDC, LLC v.

City of Ann Arbor, 675 F.3d 608, 612-613 (dismissal of discrimination claim under

the Fair Housing Act affirmed since allegations of complaint did not support

plausible inference of intentional discrimination). Although “detailed factual

allegations” are not required in the Complaint, there must be sufficient “factual

content” so that a court, using its “judicial experience and common sense,” can

“draw the reasonable inference” /qgba/, 556 U.S. at 678, of discrimination. 76630

Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir.2013)

3 The Sixth Circuit has held that notwithstanding Ashcroft v. /qba/, 556 U.S. 662 (2009) and

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Swierkiewicz remains good law. See

Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir.2012) (district court erred since plaintiff

not required to plead a prima facie case under McDonnell Douglas in order to survive a

motion to dismiss)

(dismissal of Equal Credit Opportunity Act discrimination claim affirmed where

plaintiffs alleged a “belief” that a bank had refinanced the loans of “delinquent

white borrowers” but failed to identify them).

In this case, Vigil states that Defendant “took a series of adverse

employment actions against her, ultimately terminating her employment.” Doc.

#10, PAGEID#51. Although Plaintiff's assertion may be correct, the only facts pled

by her that show SSI’s discriminatory motive relate to Vigil’s sexual orientation.

Specifically, Vigil’s Complaint alleges that employees “convened a meeting with

Joyce where they disclosed Plaintiff’s sexual orientation without her permission,”

that she was thereafter “isolated” and “instructed to stay in her area and avoid

speaking with her coworkers,” “interrogated and harassed” about her sexual

orientation by Joyce and told that her same-sex relationships were “coerced and

nonconsensual.” Doc. #1, PAGEID#3. Finally, Vigil was told that it was “easier to

just quit her job than to stay on the job.” /a.

Although Vigil cites the Court to support numerous decisions from other

jurisdictions as well as a determination by the EEOC, Ba/dwin v. Foxx, E.E.0.C.

Appeal No. 0120133080, 2015 WL 4397641, at *5, 10 (July 15, 2015) (permitting

claim for sex discrimination based on sexual orientation under Title VII), the Sixth

Circuit has yet to recognize a Title VIl claim for sexual orientation. In Vickers v.

Fairfield Med. Cir., 453 F.3d 757, 763 (6th Cir. 2006), the Court affirmed the

dismissal of a male employee's Title VII sex discrimination claim since the

complaint alleged that the plaintiff was discriminated against due to his

association with a homosexual male doctor. While the Court acknowledged that

“same-sex harassment is actionable under Title Vil under certain circumstances,”

there were no allegations in Vickers that plaintiff's dismissal was due to his

appearance or mannerisms on the job. Sexual orientation, according to the Court

“is not a prohibited basis for discriminatory acts under Title VII.” /o. at 762.

Similarly, in Gi/bert v. Country Music Ass’n, Inc. 432 Fed. Appx. 516 (6th Cir. 2011),

even though the union member plaintiff was an openly homosexual male who

was threatened by co-workers, the Sixth Circuit affirmed a dismissal of his Title VII

claim based on sexual orientation. The Court held that because the discrimination

was “based on sexual orientation, nothing more,” the plaintiff had stated no claim

for relief under Title VII. /a@. at 520.

Based upon the above-cited Sixth Circuit authorities holding that no claim

for sex discrimination under Title VII exists based on sexual orientation, Plaintiff

has failed to state a claim for relief, as a matter of law, under Title VII for

“traditional sex discrimination claims” as alleged in Counts | and Il, as well as for

any claim based on sexual orientation, as alleged in Counts IIl and IV.

2. Sex Discrimination under Title Vil and R.C. § 4112 for Non-conformity

with Traditional Female Gender Stereotypes (Counts | and II)

SSI next argues that neither has Vigil pled a Title VII claim based on gender

non-conforming characteristics and sex-stereotyping as alleged in Counts | and Il.

Although Title VII claims based on sexual orientation are not recognized by the

Sixth Circuit, claims based on gender non-conforming characteristics that support

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a sex-stereotyping claim are a form of “impermissible discrimination” under Title

Vil. Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

In Smith, the Court held that the claims of sex stereotyping and gender

discrimination were sufficiently pled by a fire department employee with male

identity disorder who alleged that as his appearance and mannerisms became

more feminine, he was harassed for un-masculine conduct and appearance. The

plaintiff alleged that the defendants planned to terminate him because of his

transsexualism and its manifestations. /a. at 569. In reversing the district court's

dismissal of the complaint, the Court held that allegations that the employee was

discriminated against based upon his gender non-conforming behavior and

appearance were actionable pursuant to Title VIl and that “[s]ex stereotyping

based on a person’s gender non-conforming behavior is impermissible

discrimination.” /d. at 575 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-

251 (1989)). Sex discrimination occurs when an employer discriminates against

women because they do not wear dresses or makeup “because the discrimination

would not occur but for the victim's sex.” /a. at 574. Similarly, “[I]t follows that

employers who discriminate against men because they do wear dresses and

makeup, or otherwise act femininely, are also engaging in sex discrimination,

because the discrimination would not occur but for the victim's sex.” /d.

Defendant argues, however, that Counts | and II for sex discrimination

based on non-conformity with traditional female gender stereotypes must be

dismissed since Vigil has “not alleged any non-conformance with any gender

11

stereotype, let alone asserted facts to establish that she was discriminated against

for such non-conformance.” Doc. #5, PAGEID#22. Merely “claiming that she is a

‘lesbian female’” is insufficient. Doc. #5, PAGEID#22.

Vigil, however, contends that she has pleaded sufficient facts in support of

her claims of discrimination under federal and state law based on sexual

stereotypes. Doc. #10, PAGEID#54.

According to Plaintiff's response, the Complaint alleges “direct evidence—

that Defendant's rationale for putting her on the PIP that ultimately led to her

termination included gender-based reasons,” Doc. #10, PAGEID#51, citing to Doc.

#1, PAGEID#4, and “that she was treated differently than similarly situated male

employees who were not similarly disciplined for the same alleged workplace

issues.” Doc. #10, PAGEID#52, citing to Doc. #1, PAGEID##4 and 5. Vigil also

claims in her response that she has alleged that Defendant discriminated against

her on the basis of several gender non-conforming traits, including but not limited

to her sexual orientation. Doc. #10, PAGEID##52 and 53, citing to Doc. #1,

PAGEID##4 and 5. She asserts that her Complaint alleges that “Defendant

criticized Vigil’s job performance in part due to her behavior toward other female

employees while at work,” Doc. #10, PAGEID#54, citing Doc. #1, PAGEID##3 and 4,

and “characterized Vigil's relationships as coerced, as if Vigil was exercising

dominion over female employees.” /d. Plaintiff states that “[T]he Complaint...

describes how Vigil was criticized for appearing frustrated, and refers to an email

in which Ruth Rutledge discussed ‘how [Vigil] talks’ as an issue motivating

12

Defendant's decision to put her on a performance improvement plan.” Doc. #10,

PAGEID#4. Finally, Plaintiff's response claims that

John Joyce and Rutledge’s descriptions of Vigil as

domineering, angry, and brash align with the well-established sex

stereotyping claim based on a woman’s non-conformity with

feminine stereotypes of passivity, docility, and politeness-including

specific stereotypes of how women should talk. (case citations

omitted).

Doc. #10, PAGEID#54.

The Court has reviewed the Complaint and notes that most of the factual

allegations cited by Vigil in support of her claims for non-conformity with

traditional gender stereotypes were not pled. Even assuming, however, that the

factual allegations were in the Complaint, these allegations do not establish, with

the possible exception of the non-existent one that Vigil was described as

“domineering, angry, and brash,” a claim for “sex stereotyping—that is,

discrimination because she failed to act like a woman.”* Smith v. City of Salem,

378 F.3d at 571. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (jury

verdict affirmed in favor of demoted transsexual police officer who was told he

was “not masculine enough” and needed to “stop wearing make-up”); Equa/

Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.,

884 F.3d 560, 569 (6th Cir. 2018) (EEOC entitled to bring Title VII claim against

* For example, there is no reference in the Complaint that “Defendant criticized Vigil's job

performance in part due to her behavior toward other female employees while at work”

or that how “she talks [was] an issue motivating Defendant's decision put her on a” PIP.

Finally, nowhere in the Complaint is it alleged that anyone, much less Joyce and

Rutledge, ever described Plaintiff as “domineering, angry, and brash.”

13

employer who fired transgender and transitioning employee because “he was no

longer going to represent himself as a man” and “wanted to dress as a woman.”)

Although gender non-conforming characteristics and sex-stereotyping is a

recognized claim of Title VII sex discrimination, Vigil alleges no facts in support of

such a claim in her Complaint. Accordingly, Counts | and Il, as pled, fail to state a

claim as a matter of law.

3. Retaliation (Counts V and VI).

SSI next argues that Plaintiff's federal and state law claims of retaliation in

Count V, pursuant to Title VII, and Count VI, pursuant to R.C. § 4112.02(1) should

be dismissed. Under Title VII, an employer is prohibited from “discriminat[ing]

against” an employee because that individual “opposed any practice” made

unlawful by Title Vil or “made a charge, testified, assisted, or participated in” a

Title VII proceeding or investigation. 42 U.S.C, § 2000e-3(a). Burlington N. & S.F.R.

Co. v. White, 548 U.S. 53, 56 (2006) (quoting § 2000e-3(a)). As such, “Title VII's

antiretaliation provision must be construed to cover a broad range of employer

conduct.” Thompson v North American Stainless, LP, 562 U.S. 170, 173 (2011).

Similarly, Ohio law provides that it is unlawful for “any person to discriminate in

any manner against any other person because that person has opposed any

unlawful discriminatory practice.” R.C. § 4112.02(I).”

To establish a prima facie case of retaliation under either federal or Ohio

law, a plaintiff must show that “(1} she engaged in a protected activity, (2) the

defending party was aware that the [plaintiff] had engaged in that activity, (3) the

14

defending party took an adverse employment action against the employee, and

(4) there is a causal connection between the protected activity and [the] adverse

action.” Blizzard v Marion Technical College, 698 F.3d 275, 288 (6th Cir. 2012)

(citations omitted).

Defendant asserts that Vigil has failed to state a claim of retaliation because

she has alleged no facts that establish that she engaged in any “protected

activity.” Protected activity requires a plaintiff to prove that she took an “‘overt

stand against suspected illegal discriminatory action.’” /d. at 288. In other words,

an employee “’may not invoke the protections of the Act by making a vague

charge of discrimination.’” Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th

Cir.2007) (quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304,

1313 (6th Cir.1989) (holding that complaints about “ethnocism” were too vague to

constitute protected activity)). Vigil contends, however, that she

engaged in protected activity by opposing Defendant's sex-

stereotyping in its assessment of her job performance; objecting to

Defendant's characterization of her relationships with same-sex

employees (i.e. opposition to gender-based disparate treatment); and

by opposing Defendant's characterization of her attitude, which had

been cast in terms of gender-based norms.

Doc. #10, PAGEID#58 citing Doc. #1, PAGEID#4

Vigil’s Complaint, however, fails to allege any facts in support of this

alleged protected activity. Although the Complaint references Vigil’s “written

rebuttal to the false allegations,” Doc. #1, PAGEID#4, there is no information in the

Complaint as to its contents. Vigil “cannot overcome a Rule 12(b)(6) motion to

dismiss simply by referring to conclusory allegations in the complaint... [I]nstead,

15

the sufficiency of a complaint turns on its ‘factual content.'” Flagstar Bank, 727

F.3d 504, citing Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). Accordingly, Plaintiff

has failed to state a claim for retaliation.

4. Defamation and Defamation Per Se (Count VIil)

In Count VIII of the Complaint, Vigil alleges a cause of action for defamation

and defamation per se. According to the Complaint, the alleged defamatory

statement was an email authored by Rutledge, “the relevant Commanding Officer

Representative” and government employee at WPAFB. Doc. #1, PAGEID#3. The

email, according to the Complaint, “contained false allegations against Plaintiff

made by SSI and other WPAFB employees” regarding Plaintiff. /d, PAGEID#4. The

email was allegedly sent by Rutledge on June 2, 2017. /a.

There are two kinds of defamation: “defamation per se,” which is material

that is defamatory on its face, and “defamation per quod,” which occurs when

material is defamatory through interpretation or innuendo. Gosden v. Louis, 116

Ohio App. 3d 195 (Summit Cty. 1996). Regardless of the type of defamation,

however, in Ohio, written defamation, or libel, must be filed “within one year after

the cause of action accrues.” R.C. 2305.11 (A). The date of accrual is the date the

statements were made. Singh v. ABA Publ. ABA, No. 02AP-1125, 2003 WL

21027897, at *3 (Ohio Ct. App. 10th Dist. May 8, 2003)).

Because Plaintiff's Complaint alleges that defamation occurred on June 2,

2017, and the Complaint, according to the docket of this Court, was not filed until

16

September 25, 2018, Vigil’s defamation claim is time-barred. Accordingly, SSI’s

motion to dismiss as to Count VIll is sustained.

IV. Conclusion

For all the foregoing reasons, Defendant's Partial Motion to Dismiss

Counts I, Il, Ill, IV, V, VI and VIII of Plaintiff's Complaint, Doc. #5, is

SUSTAINED. The dismissal! of Counts |, Il, III, IV, V, Vl and VIIl is without

prejudice. At this point in time, only Plaintiff's breach of contract claim

(Count VII) remains. Plaintiff is granted leave to file an amended complaint

within 14 days subject to the strictures of Fed. R. Civ. P. 11.5

Date: September 25, 2019 OU. (PN aX

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

> Plaintiff is encouraged to refile her claim for discrimination on the basis of sexual

preference given the fact that the United States Supreme Court has accepted certiorari on

three Title VIl cases raising this very issue. Bostock v. Clayton County, Georgia, 723 Fed.

Appx. 964 (11th Cir. 2018), cert granted, 139 S.Ct. 1599 (April 22, 2019) (No. 17-1618);

Altitude Express, Inc. v. Zarda, 883 F.3d 100 (2nd Cir. 2018), cert granted, 139 S.Ct. 1599

(April 22, 2019) (No. 17-1623); EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560

(6th Cir. 2018), cert granted, 139 S.Ct. 1599 (April 22, 2019) (No. 18-107) Plaintiff should

refile these claims in the amended complaint in order to preserve them should the

Supreme Court rule contra to existing Sixth Circuit authority.

17