Breeden v. Frank Brunckhorst Co LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LATISHA BREEDEN,

Plaintiff, : Case No. 2:19-cv-5515

- 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. 19), Plaintiff LaTisha Breeden’s Brief in Opposition (ECF No. 23), and

Defendant’s Reply (ECF No. 24). For the following reasons, Defendant’s Motion is GRANTED.

I. Procedural History

On December 18, 2019, Plaintiff LaTisha Breeden filed a Complaint (ECF No. 1)

alleging claims for sexual harassment (Count 1), hostile work environment based on sex/gender

discrimination (Count 2), sex/gender discrimination in violation of Title VII (Count 3) and Ohio

Revised Code Chapter 4112 (Count 4), and retaliation (Count 5). On February 14, 2020,

Defendant Frank Brunckhorst Co., LLC (“FBC”) moved to dismiss the Complaint pursuant to

Fed. R. Civ. P. 12(b)(6). (ECF No. 8.) Ms. Breeden then moved to voluntarily dismiss Counts 3

and 4. (ECF No. 15.)

After Defendant’s Motion was fully briefed (ECF Nos. 14 16), the Court issued an

Opinion and Order (ECF No. 17) finding that Plaintiff’s Complaint failed to set forth sufficient

facts to plausibly allege Counts 1, 2 and 5. However, instead of granting Defendant’s Motion, the

Court granted Plaintiff leave to file an amended complaint to address the shortfalls noted by the

Court. Having done so on May 5, 2020 (ECF No. 18), the matter again comes before the Court

on a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 19.) The matter is now

fully briefed and ripe for review. (ECF Nos. 23, 24.)

II. Allegations Contained in the Amended Complaint

In the Amended Complaint, Ms. Breeden asserts claims for sexual harassment (Count 1),

hostile work environment based on sexual harassment and sex/gender discrimination (Count 2),

and retaliation (Count 3). For purposes of the pending Motion, the Court must accept the

allegations in the Amended Complaint as true, drawing all reasonable inferences in favor of Ms.

Breeden.

Ms. Breeden alleges that she worked for FBC as a customer service representative and

data entry worker from July 2016 until December 19, 2017. (Amend. Compl., ¶ 16, ECF No. 18.)

She was an “exemplary employee” with “little history of discipline.” (Id. ¶ 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, Natalie1, even though

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

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

boss, she ripped a document out of Ms. Breeden’s hands stating that she “can’t have [Breeden]

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

one.” (Id. ¶ 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. ¶ 28.) After only three

months at FBC, Ms. Breeden looked for positions in other departments. (Id. ¶ 30.)

1 Ms. Breeden’s Amended Complaint does not include the full names of many FBC

employees and customers mentioned therein. (See ECF No. 18.)

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

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

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

complained to Sherri in Human Resources that she was “uncomfortable due to the frequent and

extreme reactions Natalie [] had nearly every time something did not go exactly as she wished it

to.” (Id. ¶ 34.) Sherri told Natalie about the complaint causing Natalie to yell at Ms. Breeden for

“ratting [her] out.” (Id. ¶ 35.)

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

(Id. ¶¶ 36–47.) According to the Amended 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 home early. (Id. ¶ 42.) 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 FBC into a hostile work environment.” (Id. ¶¶ 44–45.) Ms. Breeden told Sherri that she

did not want to work with Natalie anymore, but she was never moved or allowed to transfer. (Id.

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

HR. (Id. ¶¶ 48–57.) Ms. Breeden also sent videos of Natalie’s outbursts to at least one manager

at FBC. (Id. ¶ 62.)

Ms. Breeden alleges several incidents of a sexual nature that occurred in the workplace.

First, Billie Jo Collette, her co-worker, often listened to “work-inappropriate shows, with

segments like How to Have Sex in an Office.” (Id. ¶ 65.) According to the Amended Complaint,

Ms. Collette listened to these shows throughout Ms. Breeden’s employment, including when

Natalie was around. (Id.) Ms. Breeden found this radio show severely offensive but the show was

never turned off when she asked. (Id. ¶¶ 66–67). Instead, nearly every time the radio show came

on, Natalie, Ms. Collette, co-worker Jackie Cockley, and Butch Booth, a warehouse manager,

discussed where they could best have sex at FBC. (Id. ¶¶ 68, 70.) Ms. Breeden found these

conversations to be “severely offensive.” (Id. ¶ 69.)

Next, around the summer of 2017, Ms. Colette talked “about bestiality and sex with

animals,” stating: “Hell yeah I watched it. It was interesting and I wanted to watch, but would

never do it.” (Id. ¶¶ 71–72.) Mr. Booth joined the discussion but changed the conversation to

discussing a business that Ms. Colette previously ran selling sex toys. (Id. ¶ 73.) According to

the Amended Complaint, “[t]hese conversations about employees’ sex lives, sex with animals,

and other similar conversations were pervasive throughout FBC and Breeden had to listen to

them numerous times each month of her employment.” (Id. ¶ 75.) Ms. Breeden found these

conversations to be “severely offensive.” (Id. ¶ 74.)

There was another occasion when Natalie told the office staff that she had walked in on a

male FBC manager defecating in the men’s room. (Id. ¶ 76.) Afterwards, the FBC manager came

in and joked about how Natalie “could at least have handed him some toilet paper.” (Id. ¶ 77.)

This conversation was repeated by Natalie multiple times. (Id. ¶ 78.) Ms. Breeden found this

conversation offensive. (Id. ¶ 79.)

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

part of her job. Larry, a purveyor from Georgia, “would ‘joke’ about Breeden getting naked for

his phone call.” (Id. ¶ 86.) According to Ms. Breeden, these comments were made each time she

spoke with Larry, and Ms. Breeden believed these comments were made because of her

sex/gender. (Id. ¶¶ 87–89.) Ms. Breeden found the comments “severely offensive.” (Id. ¶ 89.)

Another purveyor, Bob Smith, asked Ms. Breeden if her co-worker “was off getting a ‘boob

job.’” (Id. ¶ 90.) Ms. Breeden claims that Mr. Smith’s question about Ms. Cockley’s breasts

“was offensive to her and representative of the sexually-charged environment that FBC

constantly forced Breeden into.” (Id. ¶ 91.) Again, she believed these comments were directed at

her because of her sex/gender. (Id. ¶ 92.) Ms. Breeden repeatedly complained about these calls to

Natalie but no remedial action was taken. (Id. ¶ 94.)

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 claims that Joe was

masturbating while on the telephone. (Id. ¶¶ 95–97.) This severely offended Ms. Breeden. (Id. ¶

96.) Ms. Breeden believes this behavior was directed at her based on her sex/gender. (Id. ¶ 98.)

She complained about the incidents with the purveyors and asked to be removed from further

telephone calls with Joe but was told that “she must continue accepting calls, even from

masturbating customers.” (Id. ¶¶ 103–04.)“Feeling sick that she would have to listen to the

customer masturbating again and returning to the sexually hostile work environment, Breeden

called off work that Monday.” (Id. ¶ 109.) The next day, she resigned. (Id. ¶ 110.) Ms. Breeden

then 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, among other things.” (Id. ¶ 111.)

III. 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).

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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The

complaint need not contain detailed factual allegations, but it must include more than labels,

conclusions, and formulaic recitations of the elements of a cause of action. Directv, Inc. v.

Treesh, 487 F.3d, 471, 476 (6th Cir. 2007). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555).

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 and co-workers. (Amend. Compl., ¶ 125.) Her second claim alleges that she was

subjected to “offensive and harassing conduct” based on her sex/gender, as well as sexual

harassment from FBC customers and employees. (Id. ¶ 145.)

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

VII or Ohio Rev. Code Chapter 4112 involve five 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 WL 543706, at *3 (S.D. Ohio Mar. 3,

2006).

There is no dispute that Ms. Breeden is a member of a protected class. Ms. Breeden has

also adequately pled that she was subjected to unwelcome sexual harassment in the form of

sexual comments and advances. (Amend Compl., ¶ 86 (“Larry . . . would ‘joke’ about Breeden

getting naked for his phone call.”), ¶ 90 (“Bob Smith . . . asked Breeden . . . if [Ms. Cockley] was

off getting a ‘boob job.’”) ¶¶ 96–97 (alleging that Joe twice masturbated while on the phone with

her).)

Element three narrows the focus of the Court’s inquiry. While Ms. Breeden lays out all of

the sexually charged and harassing behavior she was exposed to during her time at FBC, she

only alleges that the harassment by the male purveyors (Larry, Bob, and Joe) was directed at her

based on her sex/gender. (Id. ¶¶ 87, 92, 98.) While the conversations and activities by her FBC

colleagues and supervisor may have been offensive to her, there is no allegation that any of this

conduct was directed at her based on her sex/gender. See Bowman v. Shawnee State Univ., 220

F.3d 456, 464 (6th Cir. 2000) (“[W]hile [the plaintiff] recites a litany of perceived slights and

abuses, many of the alleged harassing acts cannot be considered in the hostile environment

analysis because [the plaintiff] has not shown that the alleged harassment was based upon his

status as a male.”). Furthermore, there is nothing alleged in the Amended Complaint that allows

the Court to infer that Ms. Breeden’s sex/gender was a motivation for her co-workers’ behavior.

Id. In fact, three out of the four FBC employees complained of are women. And Ms. Breeden

makes no attempt to allege facts sufficient to meet the standard for same-sex harassment under

Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006)2. Accordingly, the Court will only

consider the allegations made regarding the purveyors as probative of the next element.

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

that the harassment is “sufficiently severe or pervasive to alter her employment conditions and

create an abusive or hostile working environment.” Smith, 2006 WL 543706, at *5. A hostile

environment encompasses both an objective and a subjective element. Bowman, 220 F.3d at 463.

“[T]he conduct must be severe or pervasive enough to create an environment that a reasonable

person would find hostile or abusive and the victim must subjectively regard that environment as

abusive.” Id.

The Amended Complaint sufficiently alleges that Ms. Breeden subjectively perceived the

FBC work environment to be hostile. She stated several times in the Amended Complaint that

she found the purveyors’ conduct to be “severely offensive” (¶¶ 85, 89, 91, 96, 100) and she

complained about “all these instances to Natalie.” (¶¶ 94, 104.) Ms. Breeden also alleges that she

resigned from her position at FBC due to the hostile and abusive work environment, particularly

FBC’s attempt to “force Breeden to accept that customers may masturbate on the phone with her

while she performed her essential job functions.” (Id. ¶¶ 107–08.) Still, the Court must also

determine whether the conduct alleged can also be considered objectively hostile.

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

2 The Supreme Court has provided three ways that a plaintiff can establish a hostile work

environment based on same-sex harassment: “(1) where the harasser making sexual advances is

acting out of sexual desire; (2) where the harasser is motivated by general hostility to the

presence of [the same gender] in the workplace; and (3) where the plaintiff offers ‘direct

comparative evidence about how the alleged harasser treated members of both sexes in a mixed-

sex workplace.’” Id. at 765 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

80–81 (1998)).

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). “‘Simple teasing’” and

“‘offhand comments’” 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.” Hunter v. General Motors LLC, 807 F’Appx 540, 545 (6th Cir. 2020)

(internal quotations omitted). 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) (citing Abeita v. TransAmerica Mailings, Inc., 159

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

is 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.” Harris, 510 U.S. at 21 (internal quotations and citations omitted); Banerjee v.

Univ. of Tennessee, No. 19-6009, 2020 WL 3485818, at *9 (6th Cir. June 26, 2020).

The allegations in the Amended Complaint do not support that the alleged sexual

harassment by the purveyors was sufficiently pervasive to alter the conditions of Ms. Breeden’s

employment. Although similar comments about whether Ms. Breeden was nude “were made

each time Breeden spoke with him” (Amend Compl., ¶ 89), there is no information about how

many times Ms. Breeden took calls from Larry during her employment with FBC. Additionally,

Ms. Breeden alleges that Bob asked her an offensive question about Ms. Cockley’s breasts a

single time, and Joe masturbated while on the phone with her twice. These alleged harassing acts

were not so frequent or continual in nature that a reasonable person would find the FBC work

environment hostile on the basis of pervasiveness. Thus, the question is are these alleged acts by

the purveyors objectively severe enough to meet the required threshold at the pleading stage? See

Harris, 510 U.S. at 21–22 (discussing that the phrase is “severe or pervasive” not severe and

pervasive (emphasis added)). The Court finds they are not.

It is well established that “acts of touching and unwelcome physical contact . . . establish

an element of physical invasion . . . [that] is more severe than harassing comments alone.”

Hawkins, 517 F.3d at 333–35. And that these acts, on their own, can often form the basis for a

hostile work environment claim. Jackson v. Cty. of Racine, 474 F.3d 493, 499 (7th Cir. 2007)

(“One instance of conduct that is sufficiently severe may be enough.”). The Seventh Circuit has

described the severity of sexual harassment as falling on a spectrum:

On one side lie sexual assaults; other physical contact, whether amorous or hostile,

for which there is no consent express or implied; uninvited sexual solicitations;

intimidating words or acts; obscene language or gestures; pornographic pictures.

On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of

coarse or boorish workers.

Baskerville v. Culligan, Int’l, 50 F.3d 428, 430 (7th Cir. 1995) (internal citations omitted).

The Sixth Circuit has declined to find isolated incidents severe enough to create a hostile

work environment except for in cases of “extreme incidents such as rape or sexual assault.”

Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 474 (6th Cir. 2012); Carter v. Youth Opportunity

Invs., LLC, No. 3:19-cv-0177, 2019 WL 1491739, at *3 (M.D. Tenn. Apr. 4, 2019) (“In the Sixth

Circuit, a single act of sexual assault may give rise to an actionable claim for the creation of a

sex-based hostile work environment.”). Here, Plaintiff’s allegations as to Bob and Larry fall into

the category of vulgar banter. As to Joe, she alleges two incidents that Joe masturbated while she

was on the phone with him. Joe’s alleged conduct does not parallel sexual assault. And even if

the Court found that the acts complained of were similar in nature to instances of unwanted

physical contact, the case law does not support a finding of hostile work environment based on

only two such instances, even coupled with a few sexually suggestive comments from other

individuals aimed at Plaintiff during the same timeframe. Compare Bowman, 220 F.3d at 459,

464 (finding the claims insufficiently severe or pervasive where the plaintiff alleged that his

supervisor had rubbed his shoulder once and “grabbed his buttocks” on another occasion, even

considered in conjunction with a handful of sexually suggestive comments by the supervisor);

Burnett v. Tyco Corp., 203 F.3d 980, 981, 984–85 (6th Cir. 2000) (finding that the conduct

alleged was not sufficiently severe or pervasive where the plaintiff alleged that her supervisor

“placed a pack of cigarettes containing a lighter inside [the plaintiff’s] tank top and brassiere

strap,” leaving her “stunned, shocked, and exposed”); Moorer v. Summit Cty. Dep’t of Job &

Family Servs., No. 5:10CV457, 2011 WL 2746098, at *1, 6 (N.D. Ohio July 14, 2011)

(dismissing hostile work environment claim on the basis that the alleged conduct was not

sufficiently severe or pervasive even where the plaintiff’s supervisor “smacked her on the rear

end” and had “made comments and unwanted advances of a sexual nature toward Plaintiff for

several months preceding this incident”) with Hawkins, 517 F.3d at 334–35 (finding a prima

facie case of hostile work environment where the male supervisor made continual requests for

oral sex, regularly rubbed against the plaintiff with his private parts, and touched or grabbed her

“every time” they worked together).

Even though Plaintiff alleges that FBC also told her she would have to accept future calls

“even from masturbating customers” (Amend Compl., ¶ 104), the Court must speculate that Joe

or anyone else would in fact masturbate during future calls in order to consider this for the

purpose of finding the conduct severe. The Court declines to do so. See Carter, 2019 WL

1491739, at *4 (explaining that the court will not consider an alleged threat of misconduct as

equivalent to actually engaging in such conduct for the purpose of a hostile work environment

claim). While the new details alleged in Plaintiff’s Amended Complaint are undoubtedly

inappropriate and offensive, Plaintiff still fails to allege facts that could be found to be

sufficiently severe in order to give rise to a claim for hostile work environment.

Accordingly, Defendant’s Motion is GRANTED as to Counts 1 and 2.

B. Count 3: Retaliation

Ms. Breeden’s third 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 action. (Amend Compl., ¶¶ 163–64.) The only adverse

employment action that she has alleged is constructive discharge.

To demonstrate a constructive discharge, Ms. Breeden must allege that “(1) the employer

. . . deliberately create[d] intolerable working conditions, as perceived by a reasonable person,

and (2) the employer did so with the intention of forcing the employee to quit . . . .” Logan v.

Denny’s, Inc., 259 F.3d 558, 568–69 (6th Cir. 2001) (internal quotations omitted). Both the

employer’s intent and the employee’s objective feelings must be considered. Id. at 569. When

determining whether the first prong is met, the Sixth Circuit has adopted seven factors that 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.” Id. (quoting Brown v.

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

Looking at these factors as applied to Ms. Breeden, the Amended 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 Ms. Breeden does allege facts that could be considered harassing, she does not

allege that FBC allowed those actions to occur in order to encourage her resignation. Making

conclusory statements that Ms. Breeden was “constructively terminated” and “retaliated against”

are not sufficient. (See Amend Compl., ¶¶ 118–122.) 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.

Accordingly, Defendant’s Motion is GRANTED as to Count 3.

IV. Conclusion

For the reasons set forth above, the Court GRANTS Defendant’s Motion to Dismiss.

(ECF No. 19). The Amended Complaint is DISMISSED with prejudice. (ECF No. 18). The

Clerk is DIRECTED to TERMINATE this case from the docket records of the United States

District Court for the Southern District of Ohio, Eastern Division.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE