The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Tess Herman,
Plaintiff, Case No. 2:19-cv-201
JUDGE SARAH D. MORRISON
v. Magistrate Judge Vascura
Ohio University, et al.,
Defendants.
OPINION & ORDER
In this sexual harassment and discrimination case, Defendant Yusuf Kalyango has filed a
Motion for Judgment on the Pleadings (ECF No. 35) under Fed. R. Civ. P. 12(c) as to each of
Plaintiff Tess Herman’s twelve claims against him. A response and reply have been filed, and for
the reasons that follow, the Court DENIES the motion in part and GRANTS the motion in part.
I. BACKGROUND
In the interest of brevity, the Court incorporates the background information set forth in
the Court’s November 22, 2019 Opinion and Order (ECF No. 55) on Defendant Ohio
University’s Motion to Dismiss (ECF No. 17).
Herman’s First Amended Complaint asserts a total of eighteen counts. Twelve of those
are against Kalyango. Those include federal claims under 42 U.S.C. § 1983 pursuant to the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution for: (1) sexual
harassment; (2) quid pro quo sexual harassment; (3) hostile environment sexual harassment; (4)
retaliation; and (5) disparate treatment. (ECF No. 15.) Herman’s state claims are based upon
Chapter 4112 of the Ohio Revised Code and are for: (1) sexual harassment; (2) quid pro quo
sexual harassment; (3) hostile environment; (4) retaliation; (5) gender discrimination; (6)
intentional infliction of emotional distress; and (7) battery. Id. Kalyango denies all claims. (ECF
No. 18.)
II. STANDARD OF REVIEW
The standard of review under Fed. R. Civ. P. 12(c) is the same as the standard for a
motion to dismiss under Fed. R. Civ. P. 12(b)(6). Allgeyer, 2017 U.S. Dist. LEXIS 165072 at
*9. In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual
allegations as true and make reasonable inferences in favor of the non-moving party. Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575
(6th Cir. 2005)). Only “a short and plain statement of the claim showing that the pleader is
entitled to relief” is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he statement need only
give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not plead
specific facts, the “[f]actual allegations must be enough to raise a right to relief above the
speculative level” and to “state a claim to relief that is plausible on its face.” Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft, 556 U.S. at 678).
III. ANALYSIS
A. § 1983 claims
Herman’s federal causes of action are premised upon 42 U.S.C. § 1983 under the
Fourteenth Amendment to the United States Constitution. Section 1983 provides “a private right
of action against any person who, acting under the color of state law, causes another person to be
subjected to the deprivation” of a right, privilege, or immunity secured by the Constitution or
laws of the United States. The Fourteenth Amendment provides that “[n]o state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection
Clause confers a constitutional right to be free from sex discrimination. S.K. v. N. Allegheny Sch.
Dist., 168 F. Supp. 3d 786, 812 (W.D. Pa. 2016) (citing Hill v. Cundiff, 797 F.3d 948, 976 (11th
Cir. 2015)). “[T]his right includes the right to be free from sexual harassment perpetrated by
government officials in a public school.” K.S. v. Detroit Public Schools, 2015 U.S. Dist. LEXIS
94312, 2015 WL 4459340, *11 (E.D. Mich. July 21, 2015) (citation omitted). Thus, § 1983
provides a basis for claims for unconstitutional sex discrimination and harassment in schools.
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009).
Under § 1983, “a plaintiff must set forth facts that, when construed favorably, establish
(1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused
by a person acting under color of state law.” Doe v. Miami Univ., 882 F.3d 579, 595 (6th Cir.
2018). In addition, Herman sues Kalyango in his individual capacity. So she must also set forth
facts that he “‘directly participated’ in the alleged misconduct, at least by encouraging, implicitly
authorizing, approving or knowingly acquiescing in the misconduct, if not carrying it out
himself.” Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013) (quoting Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999)).
As to the first requirement, Herman alleges Kalyango deprived her of her constitutional
right to be free from sexual discrimination and sexual harassment. As to the second prong,
Herman alleges Kalyango engaged in the alleged discriminatory actions “while he was a state
actor acting in his individual capacity under color of state law.” (ECF No. 15 ¶ ¶ 248, 225, 236,
257, 266.) Kalyango does not argue that he is not a state actor. So, for purposes of the instant
motion, the Court shall treat him as one. And, as to the third aspect, Herman alleges Kalyango
carried out the conduct at issue himself.
The Court will first examine whether Herman sufficiently alleges a constitutional
violation in the form of her claims for quid pro quo and hostile environment sexual harassment
before turning to the adequacy of her disparate treatment and retaliation claims.
1. Sexual Harassment
Herman’s sexual harassment claim takes two forms—hostile environment and quid pro
quo. Both survive Kalyango’s Motion for Judgment on the Pleadings.
a. Hostile Environment
A sexual harassment claim brought under § 1983 and based upon a hostile work
environment created by a supervisor involves four elements. Specifically, Herman must allege
that “(1) she was a member of a protected class; (2) she was subject to unwelcomed sexual
harassment; (3) the harassment was based on her sex; and (4) the harassment created a hostile
work environment.” Hickman v. Laskodi, 45 F. App’x 451, 453 (6th Cir. 2002) (quoting
Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999)). These are the same elements
as for a Title VII hostile environment claim. Black v. Columbus Pub.Sch., 124 F. Supp. 2d 550,
576 (S.D. Ohio 2000). Additionally, “[t]he Sixth Circuit instructs that courts use the same
standard when evaluating hostile work environment claims under Title VII . . . and Ohio Revised
Code Chapter 4112.” Berryman v. SuperValu Holdings, Inc., No. 3:05cv169, 2010 U.S. Dist.
LEXIS 32960, at *37-40 (S.D. Ohio Mar. 31, 2010) (citing Noble v. Brinker Int’l, Inc., 391 F.3d
715, 720 (6th Cir. 2004)). Accordingly, this analysis will also apply to Herman’s Chapter 4112
state law claim for hostile environment.
Kalyango implicitly concedes Herman is a member of a protected class. So, the Court
turns to the second aspect of the examination: whether Herman was the subject of unwanted
sexual harassment. Sexual harassment includes “‘discriminatory intimidation, ridicule, and
insult.’“ Barry v. O’Grady, No. 2:14-cv-2693, 2017 U.S. Dist. LEXIS 50695, at *37-39 (S.D.
Ohio Mar. 31, 2017) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation
omitted). “And despite its name, sexual harassment ‘need not be overtly sexual in nature’ to be
actionable.” Barry, 2017 U.S. Dist. LEXIS 50695, at *38 (quoting Williams, 187 F.3d at 565).
Indeed, “sexual animus can be inferred from conduct not overtly sexual in nature when the
context suggests it.” Ladd v. Grand Trunk W R.R., Inc., 552 F.3d 495, 500 (6th Cir. 2009).
The alleged sexual harassment, however, must be based on sex. Williams, 187 F.3d at
565. To prove that, Herman “‘must show that but for the fact of her sex, she would not have been
the object of harassment.’” Farra v. GMC, 163 F. Supp. 2d 894, 906 (S.D. Ohio 2001) (quoting
Williams, 187 F.3d at 565). Put another way, “harassing behavior that is not sexually explicit but
is directed at women and motivated by discriminatory animus against women satisfies the ‘based
on sex’ requirement.” Williams, 187 F.3d at 565.
If the alleged sexual harassment is “sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment,” then a hostile work
environment exists. Barry, 2017 U.S. Dist. LEXIS 50695 at *38 (citation and internal quotation
marks omitted.) A hostile environment encompasses both an objective and a subjective element.
That is, “the conduct must be severe enough to create an environment that a reasonable person
would find hostile or abusive and the victim must subjectively regard that environment as
abusive.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000).
When deciding whether conduct is severe or pervasive enough to constitute a hostile
work environment, the Court considers, “among other factors, ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Barry, 2017 U.S. Dist. LEXIS 50695 at *38 (quoting Hickman, 45 F. App’x at
454 (quoting Bowman, 220 F.3d at 463) (internal quotation marks omitted)). “Ultimately,
whether a hostile work environment exists is a determination based on the totality of the
circumstances.” Barry, 2017 U.S. Dist. LEXIS 50695 at *39 (citations omitted). The totality of
the circumstances:
must be construed to mean that even where individual instances of
sexual harassment do not on their own create a hostile
environment, the accumulated effect of such incidents may result
in a Title VII violation. This totality-of-circumstances examination
should be viewed as the most basic tenet of the hostile-work-
environment cause of action.
Williams, 187 F.3d at 563. A final, key consideration also exists:
when considering the viability of a sexual harassment claim, it is
important to distinguish between harassment and discriminatory
harassment. The Equal Protection Clause is not a general civility
code. Although non-overtly sexual conduct can be considered in
the hostile work environment analysis, such conduct should only
be considered when the plaintiff has also alleged conduct that
could evince animus toward the gender in question.
Barry, 2017 U.S. Dist. LEXIS 50695, at *39 (emphasis added).
Kalyango argues that his alleged conduct was not “overtly sexual, based on gender” or
“severe or pervasive enough to rise to the level of a hostile or abusive environment.” (ECF No.
35 at 13.) Describing his actions as “isolated and/or sporadic,” Kalyango contends Herman fails
to assert he created working conditions for her that were so “intolerable that she felt compelled to
resign.” Id. In response, Herman reiterates Kalyango sent her numerous unwanted texts and
emails of a romantic nature between when they met in February 2017 and the end of her YALI
employment in July 2017. She repeats that Kalyango attempted to get her to share a hotel room
with him in a foreign county while on a YALI trip.
Kalyango’s frequent texts complimented Herman’s physical looks and asked her to join
him for dinner, sometimes late at night. One text contained a winking emoji, and another ended
with “sweet dreams.” The texts continued even after Herman asked him to stop contacting her
about non-work matters after 9 p.m. Those communications pre-dated Kalyango’s paying for a
substantial portion of the Rwanda trip and attempting to get Herman to share a hotel room with
him there. He also forcefully grabbed her arm in an attempt to get her to dance with him while at
a club at night. Taken together, these allegations are sufficient to sustain the unwelcomed
harassment aspect of the analysis. Moreover, all of that happened while Kalyango was Herman’s
supervisor and a professor within the journalism college where she was attempting to secure a
graduate degree. Thus, a power imbalance existed.
Having found that Kalyango’s actions could equate to unwelcome sexual advances, the
issue of whether that harassment was based on sex must be examined. In this regard, Kalyango’s
actions occurred against a backdrop of “common knowledge” within the journalism school that
Kalyango “used his power [and] authority . . . to seek out inappropriate personal, romantic, and
possibly sexual relationships with female graduate students” while male graduate students did
not receive such overtures from Kalyango. (ECF No. 15 ¶ 103.) “The critical issue, Title VII’s
text indicates, is whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not exposed.” Bowman, 220
F.3d at 463-64 (citation omitted). She therefore sufficiently alleges Kalyango’s advances were
based on her sex. See Heimberger v. Pritzker, No. 2:12-CV-01064, 2014 U.S. Dist. LEXIS
34504, at *37 (S.D. Ohio Mar. 17, 2014) (denying motion to dismiss sexual harassment quid pro
quo claim when female plaintiff alleged unwanted advances were based on her sex.)
The totality of the circumstances alleged in the First Amended Complaint reveal an
objectively and subjectively hostile environment at this stage of the case. A reasonable person
could find Kalyango’s collective conduct severe enough to create hostile environment. In
addition, Herman subjectively viewed the environment as hostile because after Kalyango’s
actions, she quit the journalism masters program and she considered leaving the University.
Kalyango’s Motion for Judgment on the Pleadings as to Herman’s § 1983 and Chapter 4112
sexual harassment hostile environment claims (Counts Nine and Fourteen) is DENIED.
b. Quid Pro Quo
To survive a motion to dismiss in a § 1983 action alleging quid pro quo sexual
harassment against an individual as a violation of the Equal Protection Clause, Herman must
assert that:
(1) she was a member of a protected class; (2) she was subjected to
unwelcomed sexual harassment in the form of sexual advances or
requests for sexual favors; (3) the harassment was based on sex;
(4) her submission to the unwelcomed advances was an express or
implied condition for receiving job (education) benefits, or her
refusal to submit to a supervisor’s sexual demands resulted in a
tangible job (educational) detriment . . . .1
1 Herman sues Kalyango in his individual capacity. Therefore, the Court omits from
discussion the final Klemenic requirement—the existence of respondeat superior liability.
Klemencic, 10 F. Supp. 2d at 921.
Klemencic, 10 F. Supp. 2d at 921 (citing Kauffman v. Allied Signal Inc., 970 F.2d 178, 186 (6th
Cir. 1992)). Kalyango concedes Herman is a member of a protected class via her female gender.
The Court holds above that the First Amended Complaint sufficiently pleads the second and third
elements. Thus, the Court focuses on Kalyango’s contention that Herman’s declining his
unwanted advances did not result in a tangible job or educational detriment for her. (ECF No. 35
at 11.)
After Herman declined Kalyango’s invitation to dance with him and share a hotel room
with him in Rwanda, Herman asserts Kalyango began treating her in a negative and retaliatory
manner. That treatment, Herman alleges, resulted in her job at YALI ending and in her decision
to withdraw from the journalism masters’ program. Those are both tangible job and educational
detriments. Consequently, the Court determines that Herman sufficiently alleges § 1983 and
Chapter 4112 sexual harassment quid pro quo claims (Counts Eight and Thirteen). Kalyango’s
Motion for Judgment on the Pleadings as those counts is DENIED.
2. Disparate Treatment
Herman asserts that Kalyango treated her in a disparate manner based upon her sex.
Kalyango responds that granting his motion is proper on this count because the First Amended
Complaint does not sufficiently identify similarly situated individuals. (ECF No. 52 at 3-4.) The
Court finds that the First Amended Complaint contains sufficient factual matter to avoid
dismissal at this juncture.
To bring a successful § 1983 claim under the Fourteenth Amendment’s Equal Protection
Clause, Herman must allege the same elements as are required to establish a disparate treatment
claim under Title VII. Black, 124 F. Supp. 2d at 576; see also Deleon v. Kalamazoo Cty. Rd.
Comm’n, 739 F.3d 914, 917-18 (6th Cir. 2014) (same). Additionally, “disparate treatment
discrimination claims brought under Ohio law are governed by the same standards as Title VII
claims.” Younger v. Ingersoll-Rand Co., No. 1:10-cv-849, 2013 U.S. Dist. LEXIS 141292, at
*36-37 (S.D. Ohio Sep. 30, 2013) (citation omitted); see also Bertram v. Medina Cty., No. 1:07-
cv-02460, 2008 U.S. Dist. LEXIS 29157, at *11 (N.D. Ohio Apr. 9, 2008) (noting Title VII and
Chapter 4112 analysis is the same for disparate impact claims). As a result, for both her federal
and state claims, Herman must allege that: (1) she is a member of protected class; (2) she was
qualified for the job; (3) an adverse employment action was taken against her, and (4) she was
treated differently than similarly situated non-protected employees. Black, 124 F. Supp. 2d 565.
Kalyango concedes Herman, as a female, is a member of a protected class. He does not
challenge her qualifications, or that she suffered an adverse employment action. Rather, he
focuses his argument solely on the similarly situated prong. (ECF No. 35 at 9-10.) In particular,
he argues Herman fails to identify any individuals whom Kalyango treated better than her. Id;
see also ECF No. 52 at 4. But she does. The First Amended Complaint indicates Aaron Atkins
and Franklin Charles, two male journalism graduate students that also participated in Kalyango’s
programs, did not face the sexual quid pro quo she and other female journalism graduates
enrolled in Kalyango’s programs endured. (ECF No. 50; ECF No. 15 ¶ 78). As a result, the Court
concludes Herman’s First Amended Complaint asserts sufficient factual matter, accepted as true,
to “state a claim to relief that is plausible on its face” for disparate treatment under § 1983 and
Chapter 4112. Kalyango’s Motion for Judgment on the Pleadings (ECF No. 35) as to counts
seven, eleven and sixteen is DENIED.
3. Retaliation
Kalyango contends Herman cannot assert a retaliation claim under the Fourteenth
Amendment’s Equal Process Clause as a matter of law. He is correct. The Sixth Circuit held “[a]
‘retaliation claim does not . . . arise under the Equal Protection Clause.’“ Barry, 2017 U.S. Dist.
LEXIS 50695, at *58-59 (quoting Smith v. City of Inkster, 644 F. App’x 602, 611 (6th Cir.
2016)); see also Collins v. Allen, No. 1:04-cv-572, 2006 WL 2505928, at *2 (S.D. Ohio Aug. 29,
2006) (“[Plaintiff’s] claim against [the defendant] is for retaliation, for which the equal
protection clause does not provide a remedy.”). As such, the Court GRANTS Kalyango’s
Motion for Judgment on the Pleadings for Herman’s Fourteenth Amendment Equal Protection
Clause retaliation claim (Count Ten).
Herman’s state retaliation claim is grounded in R.C. § 4112.02(I) which makes it an
unlawful discriminatory practice for “any person to discriminate in any manner against another
person because that person has opposed any unlawful discriminatory practice defined in this
section.” In particular, Herman alleges that after she lodged her ECRC complaint, Kalyango
falsely accused her of changing her performance evaluations while also negatively altering
Herman’s evaluations himself. (ECF No. 15 ¶ 310; ECF No. 50 at 18-19.) Kalyango says this
claim should be dismissed because Herman did not engage in a protected activity, and she did
not suffer harassment or termination as a result of any complaint. (ECF No. 35 at 17-18.) On
these points, Kalyango is mistaken.
The prima facie elements for retaliation under R.C. 4112.02(I) require a plaintiff to
demonstrate that: (1) she engaged in a protected activity; (2) the defendants were aware she
engaged in the activity; (3) the defendants took an adverse action against her; and (4) a causal
link exists between the protected activity and the adverse action. Reid v. Plainsboro Partners, III,
10th Dist. No. 09AP-442, 2010-Ohio-4373, ¶ 56 (Sept. 16, 2010) (citing Woods v. Capital Univ.,
10th Dist. No. 09AP-166, 2009-Ohio-5672, ¶ 45 (Oct. 27, 2009)).
In the instant matter, Herman alleges that she reported Kalyango’s sexual harassment of
and discrimination against her to the ECRC. This satisfies the first element. Herman also asserts
Kalyango knew about her ECRC complaint. This satisfies the second element. Herman next
alleges Kalyango falsified her evaluations and also incorrectly accused her of altering
assessments about her after she lodged the ECRC complaint. This satisfies the third element.
Fourth, and finally, Herman claims Kalyango did so because she reported him to the ECRC. This
satisfies the final element.
Because Herman has satisfied her initial burden, and because similar allegations have
been deemed sufficient to avert dismissal, the Court concludes that Herman has shown
“sufficient factual matter . . . to state a claim to relief that is plausible on its face.” See Littlejohn
v. Montgomery Cty. Treasurer, No. 3:16-cv-00350, 2017 U.S. Dist. LEXIS 103203, at *5-6 (S.D.
Ohio July 5, 2017); Twombly, 550 U.S. at 570. Kalyango’s Motion for Judgment on the
Pleadings for Herman’s R.C. 4112 retaliation claim (Count Fifteen) is therefore DENIED.
B. State Claims
1. Sexual Discrimination under R.C. 4112.02(A)
Kalyango asserts Herman’s R.C. § 4112.02(A)2 discrimination claims against him in his
individual capacity must be dismissed because Kalyango is not an “employer” within the
meaning of Chapter 4112. (ECF No. 35 at 15-16.) Herman counters she is not proceeding under
that section; instead, she notes that she is pursuing Kalyango in his individual capacity under
2 This section prohibits any employer from discriminating against any person on the basis
of their sex.
R.C. § § 4112.02(I)3 and 4112.02(J)4. (ECF No. 50 17-18.) Consequently, the Court holds
Kalyango’s Motion for Judgment on the Pleadings (ECF No. 35) as to Herman’s R.C.
4112.02(A) “claim” (Count Twelve) is DENIED.
2. Intentional Infliction of Emotional Distress
The First Amended Complaint asserts that Kalyango, through his collective actions
discussed above, intentionally inflicted emotional distress upon Herman. (ECF No. 15 ¶ ¶ 321-
329.) Kalyango argues that the allegations contained within that pleading fail to satisfy the
requisite level of “extreme and outrageous” behavior such that dismissal of this claim is
necessary. (ECF No. 35 at 18-19.) Herman counters that Kalyango’s characterization of this
claim fails to account for his falsifying her performance evaluations, so his behavior does qualify
as “extreme and outrageous.” (ECF No. 50 at 19-20.) Kalyango’s contentions prevail.
To succeed on her claim for intentional infliction of emotional distress, Herman must
sufficiently allege the following four elements: (1) the defendant intended to cause emotional
distress or knew or should have known that actions taken would result in severe emotional
distress; (2) the defendant’s conduct was so extreme and outrageous that it went beyond all
bounds of decency, and was such as to be considered utterly intolerable in a civilized
community; (3) the defendant’s actions proximately caused plaintiff psychic suffering; and (4)
the plaintiff suffered serious mental anguish of a nature that no reasonable man could be
expected to endure. Aycox v. Columbus Bd. of Educ., 10th Dist. No. 03AP-1285, 2005-Ohio-69,
¶ 27. According to the Supreme Court of Ohio:
3 This section prohibits any person from discriminating or retaliating against someone
who has opposed any unlawful discriminatory practice set forth in Chapter 4112.
4 This section prohibits any person from attempting to commit any discriminatory
practice included in Chapter 4112.
It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability
has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in
which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim, ‘Outrageous!’
The liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities. The rough edges of our society are still in need of a
good deal of filing down, and in the meantime plaintiffs must
necessarily be expected and required to be hardened to a certain
amount of rough language, and to occasional acts that are
definitely inconsiderate and unkind. There is no occasion for the
law to intervene in every case where some one’s feelings are hurt.
Yeager v. Local Union 20, Teamsters, 6 Ohio St. 3d 369, 374-75 (1983) (internal quotations
omitted) (quoting Restatement (Second) of Torts § 46 cmt. D (1965)).
Whether a plaintiff sustains this exacting standard “is to be judged by the objective
standards of the community, not by a particular plaintiff’s subjective sensibilities.” Black, 124 F.
Supp. 2d at 587 (citations omitted). “A plaintiff must demonstrate emotional injury which is both
severe and debilitating.” Id. (citation omitted).
In sum, Herman alleges that Kalyango: (1) sent her unwelcome text and emails with a
sexual undertone; (2) pressured her to share a hotel room with him in a foreign county; (3)
injured her shoulder while trying to get her to dance with him; and (4) falsified her performance
reviews. Although highly inappropriate, those actions, whether individually or together, simply
are not “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community,” as required under Ohio law. In addition, while it is true that sexual harassment may
constitute intentional infliction of emotional distress where the alleged harasser occupies a
position of power over the victim, the resultant emotional distress must be both “severe and
debilitating.” Zimmer v. Ashland Univ., Case No. 1:00CV0630, 2001 U.S. Dist. LEXIS 15075, at
*35 (N.D. Ohio Sep. 5, 2001) (citation omitted.) Herman does not assert that she suffered from
that level of distress as a result of Kalyango’s actions.
For these reasons, Kalyango’s Motion for Judgment on the Pleadings for Herman’s
intentional infliction claim (Count 17) is GRANTED.
3. Battery
Herman alleges that she and Kalyango went to the Blue Room Club while they were in
Africa. There, Herman claims Kalyango “forcefully grabbed her hands and attempted to force
her to dance with him, causing physical pain and harm to . . . Herman’s right shoulder.” (ECF
No. 15 ¶ ¶ 38, 330-334.) These allegations form the basis for Herman’s battery claim that
Kalyango now moves to dismiss on statute of limitations grounds.
“Battery is an intentional contact with another that is harmful or offensive.” Zhelezny v.
Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 12 (Sept. 30, 2013) (citations omitted.) “‘A
person is subject to liability for battery when he acts intending to cause a harmful or offensive
contact, and when a harmful contact results.’” Id. (quoting Love v. Port Clinton, 37 Ohio St.3d
98, 99 (1988) (citing Restatement of Law 2d, Torts, Section 13, at 25 (1965)).
The statute of limitations for assault and battery is one year. Zhelezny, 2013-Ohio-4337, ¶
14 (citing R.C. 2305.111). Upon review of the First Amended Complaint, the underlying incident
occurred in June 2017. Herman filed her original Complaint on January 20, 2019. Thus, Herman
argues the Court should instead apply the two-year statute of limitations found in R.C. 2305.10
for personal injury claims. (ECF No. 50 at 20.)
“Where the essential character of an alleged tort is an intentional, offensive touching, the
statute of limitations for assault and battery governs even if the touching is pled as an act of
negligence. To hold otherwise would defeat the assault and battery statute of limitations.” Love,
37 Ohio St. 3d at 99. The First Amended Complaint asserts that Kalyango “intentionally” and
“forcefully grabbed” Herman’s hands (ECF No. 15 ¶ ¶ 38, 331.) From this, there can be no doubt
that Herman is alleging intentional touching; accordingly, R.C. 2305.111’s one-year limitation
period applies. Because Herman initiated this action more than one year after June 2017, the
Court GRANTS Kalyango’s Motion for Judgment on the Pleadings as to Herman’s battery claim
(Count 18).
IV. CONCLUSION
The Court GRANTS Kalyango’s Motion for Judgment on the Pleadings (ECF No. 35) as
to Herman’s claims for Equal Protection Clause retaliation, intentional infliction of emotional
distress and battery.
The Court holds that Kalyango’s Motion for Judgment on the Pleadings (ECF No. 35)
regarding R.C. 4112.02(A) sexual harassment is DENIED.
The Court DENIES the remainder of Kalyango’s Motion for Judgment on the Pleadings
(ECF No. 35) such that Herman’s claims for Title VII and Chapter 4112 hostile environment
(Counts 9, 14), quid pro quo and disparate treatment (Counts 8, 13, 11, 16), as well as her
Chapter 4112 retaliation claim (Count 15), remain pending.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE