Breeden v. Frank Brunckhorst Co LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LATISHA BREEDEN,

Plaintiff, : Case No. 2:19cv5515

- vs - Judge Sarah D. Morrison

Magistrate Judge Kimberly A. Jolson

FRANK BRUNCKHORST CO., LLC,

:

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant Frank Brunckhorst Co., LLC’s Motion to

Dismiss. (ECF No. 8.) Plaintiff LaTisha Breeden filed a Brief in Opposition to the Motion (ECF

No. 14) and then she voluntarily dismissed Counts 3 and 4 of her Complaint (ECF No. 15).

Finally, Defendant filed a Reply in Support of its Motion to Dismiss. (ECF No. 16.) The Motion

is now ripe for decision.

I. The Allegations Contained in the Complaint

For purposes of the pending motions, the Court must accept the allegations in the

Complaint as true, drawing all reasonable inferences in favor of the plaintiff.

Following dismissal of two her claims, Ms. Breeden asserts claims for sexual harassment

(Count 1), hostile work environment based on sex/gender discrimination and sexual harassment

(Count 2), and retaliation (Count 5). In support of these claims, she alleges that she worked for

Defendant Frank Brunckhorst Co., LLC1 (“FBC”) as a customer service representative and data

1Ms. Breeden alleges that Defendant does business as Boar’s Head Brands. (Compl. ¶ 2).

In its Motion to Dismiss, Defendant states that it does not do business under that name. (ECF No.

8, n.1).

entry worker from July 2016 until December 19, 2017. (ECF No. 1, ¶ 16.) She was an

“exemplary employee” with “little history of discipline.” (Id. at ¶ 17.)

Tensions at FBC existed from the time Ms. Breeden started her employment. She was

told in her interview that she would need to help train her soon-to-be boss Natalie,2 even though

Ms. Breeden’s own training was “ineffective.” (Id. at ¶¶ 21, 24.) She asserts she was forced to

work through lunch and not allowed to leave. (Id. at ¶ 18.) At some point after Natalie became

her boss, Natalie ripped a document out of Ms. Breeden’s hands saying that she “can’t have

[Breeden] fucking up these accounts, [Breeden] can work on the dummy account since [she]

wants to be one.” (Id. at ¶ 27.) Another employee told Ms. Breeden that this type of conduct by

Natalie was “normal” and had caused other employees to leave the department. (Id. at ¶ 28.)

After only three months at FBC, Ms. Breeden looked for positions in other departments. (Id. at ¶

30.)

At one point, Natalie questioned Ms. Breeden about why people had complained about

Natalie. (Id. at ¶ 32.) Natalie told her that it “didn’t look good” that Ms. Breeden was looking for

another position. (Id. at ¶¶ 32-33.) Describing this incident as an “interrogation,” Ms. Breeden

complained to Sherri in Human Resources that she was “uncomfortable due to the hostile work

environment caused by Natalie.” (Id. at ¶ 34.) Sherri told Natalie about the complaint. (Id. at ¶

35.)

In November 2016, there were several incidents involving Ms. Breeden’s co-workers.

(Id. at ¶¶ 36-52.) According to the Complaint, Ms. Breeden’s only involvement in these incidents

was that she was told that she would have to work late one day because a colleague had gone

2 Ms. Breeden’s Complaint does not include the last name of many FBC employees

mentioned therein. See ECF No. 1.

home early. (Id.) Ms. Breeden subsequently complained to Sherri in HR about who could take

time off, saying that Natalie was almost always confrontational, and that Natalie “was pushing

Boar’s Head into a hostile work environment.” (Id. at ¶¶ 50, 60.) Ms. Breeden told Sherri that

she did not want to work with Natalie anymore. (Id. at ¶ 51.)

In March 2017, Natalie had several “outbursts” that led Ms. Breeden to again complain to

HR. (Id. at ¶¶ 52-66.) Ms. Breeden also sent videos of Natalie’s outbursts to at least one manager

at FBC. (Id. at ¶ 68.)

Ms. Breeden also alleges that there were several incidents of a sexual nature in the

workplace. One example is that Ms. Collette, her co-worker, often listened to “work-

inappropriate shows, with segments like How to Have Sex in an Office.” (Id. at ¶ 71.) There was

an occasion in which Natalie, Ms. Collette, co-worker Jackie Cockley, and Butch Booth (an FBC

warehouse manager) discussed where they could best have sex at FBC. (Id. at ¶¶ 72-73.) And,

around the summer of 2017, Ms. Colette talked “about bestiality and sex with animals”; Mr.

Booth joined the discussion but changed the conversation to a business that Ms. Colette

previously ran selling sex toys. (Id. at ¶¶ 74-76.) Finally, there was an occasion when Natalie

told the office staff that she had walked in on a male FBC manager defecating in the men’s

room. (Id. at ¶¶ 77-80.)

Ms. Breeden also had problems with male purveyors with whom she had to interact as

part of her job. For example, Larry (a purveyor from Georgia) “would joke about Breeden

getting naked for his phone call.” (Id. at ¶ 88.) Another purveyor asked Ms. Breeden if her co-

worker “was off getting a ‘boob job.’” (Id. at ¶ 89.) And, on December 5, 2017 and again a week

later, Joe, a third purveyor, spoke softly with Ms. Breeden and moaned and grunted during their

call; Ms. Breeden thought that Joe was masturbating while on the telephone, but she did not ask

him why he was making those noises. (Id. at ¶¶ 91-95.) She complained about these incidents

with the purveyors and asked to be removed from further telephone contact with Joe but nothing

was done. (Id. at ¶¶ 90-97.)

Ms. Breeden had a third call scheduled with Joe but she resigned from FBC on the day of

the call. (Id. at ¶¶ 98-99.) On the day that she resigned, Ms. Breeden met with Natalie, Sherri,

and two other managers to tell them that she could not work “in such a hostile work environment

where she would be forced to listen to customers masturbate on the phone.” (Id. at ¶ 100.)

II. Analysis

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with

sufficient specificity to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations

omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

When evaluating a Rule 12(b)(6) motion to dismiss, courts must construe the complaint

in the light most favorable to the plaintiff and accept the complaint’s allegations as true, drawing

all reasonable inferences in favor of the plaintiff. Coley v. Lucas Cty., Ohio, 799 F.3d 530, 537

(6th Cir. 2015) (citation omitted); see also Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.

2007). If a plaintiff is bringing a federal employment discrimination claim, she is not required to

plead facts establishing a prima facie case under Title VII in order to state a claim for relief. Keys

v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (citing Swierkiewicz v. Sorema, 534 U.S.

506, 510-12 (2002)). “The prima facie case ... is an evidentiary standard, not a pleading

requirement.” Swierkiewicz, 534 U.S. at 510. Rather, a plaintiff “need allege only (a) the

statutory basis for [the] claims, and (b) the factual predicate of those claims, such that the

defendants are ‘apprise[d] . . . of the [ ] claims and the grounds upon which they rest.’”

Dickinson v. Zanesville Metro. Hous. Auth., 975 F. Supp. 2d 863, 871 (S.D. Ohio 2013) (quoting

Lindsay v. Yates, 498 F.3d 434, 440 (6th Cir. 2007)). Nevertheless, a plaintiff “must allege

‘sufficient factual’ content from which a court, informed by its ‘judicial experience and common

sense,’ could ‘draw the reasonable inference’” that defendant discriminated against her because

of her sex. Keys, 684 F.3d at 610 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)).

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and plausibility of

entitlement to relief.

Iqbal, 556 U.S. at 678 (internal citations and quotation marks omitted).

A. Counts 1 and 2: Sexual Harassment and Hostile Work Environment based

on Sex/Gender Discrimination and Sexual Harassment

Ms. Breeden’s first claim alleges that she was “subjected to unwelcomed sexual

harassment in the form of sexual comments, inappropriate sexual gestures, and sexual advances”

from customers, superiors, and co-workers. (Compl. ¶¶ 109-124). In turn, her second claim

alleges that she was subjected to “offensive and harassing conduct” by a superior and sexual

harassment from a customer. (Compl. ¶¶ 125-138).

Claims for sexual harassment based upon a hostile work environment brought under Title

VII or Ohio Rev. Code Chapter 4112 involve four elements. Specifically, a plaintiff must allege

that (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual

harassment; (3) the harassment complained of was based on sex; (4) the harassment had the

effect of unreasonably interfering with Plaintiff’s work performance and created a working

environment that was intimidating, hostile, or offensive; and (5) a basis for employer liability

exists. Smith v. Meyer Builders, No. C-1-03-729, 2006 U.S. Dist. LEXIS 8334, at *10 (S.D. Ohio

Mar. 3, 2006). Here, accepting as true all of Ms. Breeden’s allegations, she fails to state a

plausible claim for relief for hostile work environment claims. While the fifth element is not at

issue, the Court need not address the first three elements of her claims because she has not

provided sufficient factual allegations to meet the fourth element of her claims.

For the fourth element of a hostile work environment claim, a plaintiff must plead that

that the alleged sexual harassment is “sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.” Smith, 2006 U.S. Dist.

LEXIS 8334, at *14 (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).

The Court considers the totality of the circumstances to assess the objective severity or

pervasiveness. That review encompasses the following factors: “the frequency of the

discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “‘[O]ffhand comments’” and

“‘isolated incidents’” do not suffice. Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir.

2009) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The case law sets

forth “a relatively high bar for what amounts to actionable discriminatory conduct under a hostile

work environment theory.” Philips v. UAW Int’l, 854 F.3d 323, 328 (6th Cir. 2017) (noting that,

in many cases, overtly discriminatory statements and racial slurs did not create a hostile work

environment under this high standard). For that reason, “[c]onduct that is “merely offensive” is

insufficient to support a hostile work environment claim. Harris, 510 U.S. at 21. “[C]omments

and harassing acts of a ‘continual’ nature are more likely to be deemed pervasive.” Hawkins v.

Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (quoting Abeita v. TransAmerica

Mailings, 159 F.3d 246, 252 (6th Cir. 1998)). Furthermore, “courts must determine whether the

workplace is so permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.” Grace v. USCAR, 521 F.3d 655, 678-79 (6th Cir. 2008).

Here, Ms. Breeden’s Complaint does not provide sufficient factual allegations for the

Court to reasonably infer that the alleged conduct was severe or pervasive enough to create a

sexually hostile or abusive work environment. For most of the incidents that she sets forth, she

fails to provide any context for when they occurred. Individually or even in combination, these

instances fall far short of the objectively severe or pervasive conduct needed to state a claim for

relief for a sexually hostile work environment as a matter of law. There are no allegations of

physically threatening or humiliating actions against Ms. Breeden. Other than one incident when

Natalie “ripped” a document from her, Ms. Breeden does not allege that any of the incidents

involving her co-workers or superiors were directed toward her or that they made it difficult for

her to do her job. While Plaintiff alleges that she “took offense” and found one conversation to

be “highly inappropriate for the workplace” (Comp. ¶ 80), she has not alleged that she was

singled out or that she was required to listen to the offensive conversations or programs. And,

while the comments made to her by the three purveyors were directed specifically towards her,

these isolated incidents are insufficient to give rise to an inference of a sexually hostile work

environment. These are insufficient facts to give rise to a reasonable inference that FBC was a

workplace “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive so as to alter conditions of her employment and create an abusive working

environment. . . .” Harris, 510 U.S. at 21 (internal quotations and citation omitted).

A review of decisions from the Sixth Circuit reveals that it takes much more than Ms.

Breeden has alleged to state a claim for a hostile work environment. See, e.g., Rayford v. Illinois

Cent. R.R., 489 F. App’x 1, 5 (6th Cir. 2012) (finding comments made to a male employee three

or four times per week, such as being called “sweet booty” and being told a co-worker “wanted

to mix coffee with his cream” and that “Ray got a big dick” for him, were “not so severe and

pervasive that a reasonable person would find his work environment hostile and abusive”); Clay

v. United Parcel Serv., Inc., 501 F.3d 695, 707-08 (6th Cir. 2007) (affirming district court’s

holding that “fifteen specific incidents spanning a two-year period” were “isolated” and “not

pervasive”); see also Williams v. CSX Transp. Co., 533 F. App’x 637, 641 (6th Cir. 2013)

(conduct directed at others in the workplace weighs against a finding of an objectively hostile

work environment).

Ms. Breeden’s Complaint fails to provide sufficient factual content for this Court to draw

the reasonable inference that a sexually hostile or abusive work environment existed at FBC

during her employment there.

B. Count 5: Retaliation

Ms. Breeden’s final remaining claim alleges that she complained about the

discrimination, sexual harassment, and disparate treatment that she was experiencing and that, as

a result, she was subjected to adverse employment actions. (ECF No. 1, ¶¶ 172-177.) The only

adverse employment action that she has alleged is constructive discharge.

To demonstrate that she was constructively discharged, Ms. Breeden must “show that (1)

‘the employer deliberately created intolerable working conditions, as perceived by a reasonable

person,’ and (2) the employer did so ‘with the intention of forcing the employee the quit . . . .’”

Logan v. Denny’s, 259 F.3d 558, 568-69 (6th Cir. 2001) quoting Moore v. Juka Welding, 171

F.3d 1073, 1080 (6th Cir. 1999). Both the employer’s intent and the employee’s objective

feelings must be considered. When determining whether the first prong is met, seven factors

guide the analysis: whether the plaintiff experienced “(1) demotion, (2) reduction in salary; (3)

reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment

to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer

calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued

employment on terms less favorable than the employee’s former status.” Brown v. Bunge Corp.,

207 F.3d 776, 782 (5th Cir. 2000).

Looking at these factors as applied to Ms. Breeden, the Complaint does not allege any

facts that would plausibly show that she was constructively discharged. She does not allege that

she was demoted or that she suffered a reduction in salary or job responsibilities. She was not

subject to reassignment or to offers of early retirement or less favorable employment terms.

While she does allege that she was harassed, she was not humiliated or badgered and there are no

allegations that such harassment was calculated to encourage her resignation.

Accordingly, Ms. Breeden has not set forth sufficient facts to allege that she was

constructively discharged. And because constructive discharge is the only adverse action that she

alleges was taken against her in retaliation for her assumed protected conduct, she has not stated

a claim for retaliation.

III. Leave to Amend

Ms. Breeden seeks leave to amend her Complaint should the Court find FBC’s arguments

persuasive. (ECF No. 14 at 14.) Courts have discretion to determine whether to dismiss a

complaint or to grant the plaintiff the opportunity to amend. See United States ex rel. Bledsoe v.

Cmty. Health Syst., Inc., 342 F.3d 634, 644 (6th Cir. 2003). When a “more carefully drafted

complaint might state a claim, a plaintiff must be given at least one chance to amend the

complaint before the district court dismisses the action with prejudice.” Id., citing EEOC v. Ohio

Edison Co., 7 F.3d 541, 546 (6th Cir. 1993) (quotation omitted)

Accordingly, the Court GRANTS Ms. Breeden leave to file an amended complaint

consistent with the foregoing discussion within FOURTEEN DAYS from the entry of this

Order. If Plaintiff files an Amended Complaint, FBC’s Motion to Dismiss will be MOOT. (ECF

No. 8.) If no amended complaint is filed within fourteen days, the Court will GRANT FBC’s

Motion to Dismiss (ECF No. 8) and will deem Plaintiffs Complaint dismissed with prejudice in

accordance with the analysis set forth herein.

IV. Conclusion

For the reasons set forth above, the Court GRANTS Plaintiff leave to amend her

Complaint within fourteen days of this Order.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE