Mitchell v. Fujitec America, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DARRYL MITCHELL,

Plaintiff,

v. Case No. 1:20–cv–363

JUDGE DOUGLAS R. COLE

FUJITEC AMERICA, INC., et al.,

Defendants.

OPINION AND ORDER

This case raises difficult questions regarding the scope of liability for intra-

corporate statements made in connection with reporting alleged workplace

misconduct. Defendant Fujitec America, Inc. terminated Plaintiff Darryl Mitchell

(“Mitchell”) after Co-Defendant Shawnez McKenzie (“McKenzie”) made sexual

harassment allegations against Mitchell to Fujitec’s human resources department.

Mitchell responded with this lawsuit, in which he asserts various claims, ranging

from Ohio-law defamation and false light claims to Title VII race discrimination

claims, against a handful of defendants. This action is now before the Court on two

motions: (1) McKenzie’s Motion to Dismiss (Doc. 10, hereinafter McKenzie’s Motion

or McKenzie’s Mot.); and (2) Defendants Fujitec America, Inc., Fujitec Co., Ltd., and

Fujitec America’s Chief Executive Officer Gary Krupp’s (collectively the “Fujitec

Defendants”) Motion to Partially Dismiss (Doc. 11, hereinafter Fujitec Motion or

Fujitec Mot.). For the reasons explained below, the Court GRANTS-IN-PART and

DENIES-IN-PART McKenzie’s Motion, and GRANTS-IN-PART and DENIES-IN-

PART the Fujitec Motion.

BACKGROUND

Mitchell began working as in-house counsel for Fujitec America in 2012.1

(Compl., Doc. 1, #4, ¶ 15). In 2013, Fujitec promoted him to Chief Legal Officer, the

position he maintained until Fujitec terminated his employment in early 2020. (Id.

at #10, ¶ 47). That parting of ways gave rise to this lawsuit.

According to Mitchell, near the end of 2019, he approached Gary Krupp, Fujitec

America’s Chief Executive Officer, to inquire about what Mitchell believed were pay

inequities relating to Mitchell’s compensation. (Id. at #4, ¶ 20). In particular,

Mitchell, an African American, alleges that he complained to Krupp about making

less that “similarly-situated Caucasian employees.” (Id. at #4, ¶ 18). Krupp declined

to discuss the issue, and rejected Mitchell’s request for increased compensation. (Id.

at #5, ¶ 22). Mitchell further claims that, at about this same time, Krupp began

stripping job responsibilities from Mitchell and interfering with Mitchell’s access to

information that Mitchell contends was important to his professional duties. (Id. at

#5, ¶ 23).

A few weeks after Krupp denied Mitchell’s request for additional

compensation, Krupp came to Mitchell’s office to inform him that another Fujitec

employee, McKenzie, had filed a complaint against Mitchell with human resources.

1 As this case is before the Court on motions to dismiss, the Court takes accepts the facts in

Plaintiff’s Complaint as true for purposes of the instant motions. Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 508 n.1 (2002) (citing Leatherman v. Tarrant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163, 164 (1993)).

(Id. at #6, ¶ 27). Krupp, along with Fujitec’s Controller, Daiji Yoshimura, who was

also present for the meeting, declined to provide any specifics about McKenzie’s

allegations. But, immediately after the meeting, Krupp asked Mitchell to report to a

conference room where outside counsel, retained to investigate the complaint,

interviewed him. (Id. at #4, ¶ 29).

During the interview, Mitchell learned that McKenzie had alleged that

Mitchell sexually harassed her. Specifically, McKenzie claimed that Mitchell had

“propositioned” her. (Id. at #7, ¶ 31). Further, McKenzie stated that Mitchell had

allegedly grabbed her by the waist in the office breakroom. (Id.). Questions posed to

Mitchell by outside counsel further suggested that McKenzie had asserted to human

resources that Mitchell visited her at her home, and had engaged in a ten-minute

telephone call that included inappropriate conversation. (Id. at #7, ¶¶ 33, 34).

The next day, Fujitec placed Mitchell on administrative leave and denied

Mitchell access to the company’s “computers and telecommunications system.” (Id. at

#8, ¶¶ 37, 38). Mitchell further claims that, contrary to Fujitec’s policy for workplace

investigations, the company refused to provide status updates throughout the review

process. (See id. at #8–9, ¶¶ 39–41, 43).

On January 21, 2020, Mitchell learned from a co-worker that Krupp had

divulged details surrounding McKenzie’s allegations to other “non-authorized”

employees. (Id. at #9, ¶ 42). This discussion allegedly occurred during a social

gathering for dinner and drinks with other Fujitec employees. (Id.). Mitchell believes

none of the employees present had a “need to know” about McKenzie’s complaint or

the ensuing investigation. (Id.).

On February 3, 2020, Krupp asked Mitchell to bring his Fujitec laptop to work

on February 5, 2020 so that the company could install “new anti-virus software.” (Id.

at #9, ¶ 45). When Mitchell showed up that day, he discovered that his badge no

longer provided him access to the company building. (Id. at #9–10, ¶ 47). Krupp met

Mitchell and escorted him to a conference room. Once there, Krupp told Mitchell that

the company determined Mitchell had violated Fujitec’s sexual harassment policy,

and that Mitchell was terminated immediately. (Id.). Mitchell claims that, in doing

so, Krupp refused to provide any details regarding that determination, once again

contrary to Fujitec policy. (Id. at #10, ¶ 48).

According to Mitchell, McKenzie fabricated her sexual harassment allegations.

(Id.). Mitchell further claims that she did so because Mitchell, in his capacity as Chief

Legal Officer, had investigated McKenzie and one of her colleagues for alleged

workplace misconduct. (Id. at #10, ¶ 50). Given that incident, McKenzie brought

allegations against Mitchell “to shield herself from otherwise legitimate employment

action, i.e., termination for poor job performance.” (Id. at #11, ¶ 51). Mitchell believes

that any “thorough and complete investigation” would have revealed the falsity of the

charges against him, (id. at #11, ¶ 52), but that the company failed to conduct one

because of its preordained decision to terminate him, (see id. at #12, ¶ 57).

All of that being said, it is not entirely clear that Mitchell is asserting that his

alleged violation of the sexual harassment policy was even the basis for his

termination. That is so because Mitchell separately alleges that Krupp informed

Mitchell that the primary reason for his termination was that Mitchell had withheld

information regarding wrongdoing by Fujitec’s former Chief Financial Officer, Ray

Gibson. (Id. at #12, ¶ 59). And Mitchell alleges that Krupp relied on that reason

despite the Gibson incident having occurred “years prior” to Mitchell’s termination

and that Mitchell’s knowledge about Gibson’s misconduct only “arose out of rumors.”

(Id.).

In any event, Mitchell appealed his termination pursuant to Fujitec’s written

workplace policies. (Id. at #13, ¶ 66). Mitchell contends that Fujitec failed to abide by

the procedures set forth in those policies. (See generally id. at #13–15 , ¶¶ 63–73).

Nonetheless, on March 11, 2020, Fujitec informed Mitchell that it was denying his

appeal. (Id. at #14, ¶ 68). As a result of his allegedly wrongful termination, Mitchell

purportedly suffered “significant emotional/mental distress and monetary damages.”

(Id. at #15, ¶ 73).

Based on these facts, Mitchell filed a twelve-count complaint against

McKenzie, Krupp, Fujitec America, Inc., and Fujitec Co., Ltd. (the Japanese parent

corporation). He asserts Ohio-law claims for (1) wrongful termination in violation of

public policy (called a Greeley claim); (2) defamation; (3) invasion of privacy (Krupp

only); (4) false light (Krupp only); (5) breach of implied contract; (6) breach of good

faith and fair dealing; (7) promissory estoppel; and (8) intentional infliction of

emotional distress. He also asserts claims for discrimination and retaliation under

both Title VII (two counts) and corresponding state law (two counts). Beyond

specifying that the invasion of privacy and false light claims are directed against

Krupp only, he does not otherwise specifically identify the Defendant(s) against

whom any particular claim is asserted.

PENDING MOTIONS

In response to the Complaint, both McKenzie and the Fujitec Defendants have

filed motions to dismiss under Rule 12(b)(6).

A. McKenzie’s Motion To Dismiss.

In McKenzie’s Motion, she seeks to dismiss all claims other than the two which

Mitchell directed only to Krupp. She argues that Mitchell has failed to state a

plausible claim for defamation against her for three reasons. First, she says Mitchell

has failed to identify the allegedly defamatory statements with adequate specificity.

Second, she claims that the alleged statements are subject to a qualified privilege,

and Mitchell’s allegations fail to overcome that privilege. And, third, she claims that

there is no evidence that her reports of sexual harassment caused Mitchell harm, as

Mitchell acknowledges Fujitec’s asserted primary reason for terminating him was his

failure to disclose Gibson’s wrongdoing. In addition, McKenzie notes the chilling

effect that could arise with regard to reporting of sexual harassment, should those

who report such allegations face potential liability for defamation.

As for the intentional infliction of emotional distress claim, McKenzie argues

it fails for two reasons. First, where an intentional infliction claim is based on

allegedly defamatory conduct, that claim necessarily fails if the underlying

defamation claim fails. Second, she contends that Ohio law holds that reporting

sexual harassment, even if the report is false, does not constitute “extreme or

outrageous conduct.”

Finally, as to the remaining claims, she asserts that, as she was not Mitchell’s

employer, she cannot be liable for wrongful termination, breach of implied contract,

breach of covenant of good faith and fair dealing, promissory estoppel, or any of the

Title VII or corresponding state-law discrimination or retaliation claims. Accordingly,

“to the extent that Mitchell is asserting any of all of these claims” against her, she

requests dismissal with prejudice. (As noted above, Mitchell directs the remaining

two claims in the Complaint, invasion of privacy and false light, only against Krupp.)

B. The Fujitec Defendants’ Motion To Partially Dismiss

The Fujitec Defendants filed their Motion to Dismiss on the same day as

McKenzie. Unlike McKenzie’s Motion, though, the Fujitec Defendants’ Motion did not

seek to dismiss all claims asserted against those Defendants. Rather, they seek an

order “dismissing the majority of Plaintiff’s claims.” (Fujitec Mot., Doc. 11, #69). In

particular, the Fujitec Defendants do not seek dismissal of the Title VII retaliation

against the two corporate-entity defendants, or the corresponding state-law

discrimination-based retaliation claim against any defendant. They argue that all

other claims fail as a matter of law, though, for the reasons summarized below.

The wrongful termination claim under Ohio law, called a Greeley claim, fails,

they say, because Mitchell cannot meet the “jeopardy element.” In particular, because

Ohio already has a statutory scheme to protect against discrimination, i.e., O.R.C.

§ 4112, a judicially-created action for wrongful discharge is not necessary, and thus,

under Greeley and its progeny, is improper.

Next, the Fujitec Defendants argue the defamation claim fails for two reasons.

First, they contend that Mitchell’s allegations fail to plausibly state a claim against

Krupp because Krupp made those statements to other corporate employees,

rendering his comments subject to a qualified privilege. Second, they say, there are

no allegations that the corporate-entity defendants said anything at all, which means

they cannot be liable for defamation.

As for the invasion of privacy claim against Krupp, the Fujitec Defendants

argue that the statements at issue relate to Mitchell’s actions at work, and Mitchell

cannot show he had a reasonable expectation of privacy for his conduct in a public

workplace. They challenge the false light claim, on the other hand, on multiple

grounds. First, they say, it is based on the allegedly defamatory statements, and thus

fails for the same reason as the defamation claim. But beyond that, false light

requires “publicity”—communication to the public at large—and there are no

allegations that such communication occurred here.

The breach of implied contract claim likewise fails, they say, because there is

no contract—implied or otherwise. In particular, Mitchell appears to base this claim

on various company policies relating to harassment investigations. But the Fujitec

Defendants assert that employee handbooks and policies are not contracts under Ohio

law.

Continuing on, the Fujitec Defendants argue that the duty of good faith and

fair dealing does not create a freestanding claim under Ohio law. As for promissory

estoppel, they say that Mitchell has failed to identify any adequate promise—again

relying on the notion that statements in an employee handbook don’t cut it as a basis

for imposing liability.

Turning to the Title VII (Count VIII) discrimination claim and Mitchell’s

corresponding state-law (Count X) discrimination claim, the Fujitec Defendants

argue that Mitchell needed, but failed, to identify similarly situated white employees

who allegedly received more favorable treatment. And the Defendants seek dismissal

of the Title VII discrimination (Count VIII) and retaliation (Count IX) claims against

Krupp, on the grounds that Title VII does not give rise to individual liability.

Finally, as to the intentional infliction of emotional distress claim, the Fujitec

Defendants, like McKenzie, argue that Mitchell has failed to identify any extreme

and outrageous conduct.

LEGAL STANDARD

At the motion to dismiss stage, a complaint must “state[] a claim for relief that

is plausible, when measured against the elements” of a claim. Darby v. Childvine,

Inc., 964 F.3d 440, 444 (6th Cir. 2020) (citing Binno v. Am. Bar Ass’n, 826 F.3d 338,

345–46 (6th Cir. 2016)). “To survive a motion to dismiss, in other words, [Mitchell]

must make sufficient factual allegations that, taken as true, raise the likelihood of a

legal claim that is more than possible, but indeed plausible.” Id. (citations omitted).

In making that assessment, the 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.” Bassett v. Nat’l Collegiate Athletic

Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (internal quotation omitted). That is true,

however, only as to factual allegations. The Court need not accept as true Plaintiff’s

legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, the well-pled facts must be

sufficient to “raise a right to relief above the speculative level,” such that the asserted

claim is “plausible on its face.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 546–47.

Under the Twombly/Iqbal plausibility standard, courts play an important

gatekeeper role, ensuring that claims meet a plausibility threshold before defendants

are subjected to the potential rigors (and costs) of the discovery process. “Discovery,

after all, is not designed as a method by which a plaintiff discovers whether he has a

claim, but rather a process for discovering evidence to substantiate plausibly-stated

claims.” Green v. Mason, No. 1:19-cv-14, 2020 WL 7028466, at *7 (S.D. Ohio Nov. 30,

2020).

LAW AND ANALYSIS

The Defendants’ two motions to dismiss overlap, at least regarding those

claims that are addressed by both motions. Accordingly, in the interests of efficiency,

the Court proceeds on a claim-by-claim basis, discussing the arguments in each of the

two motions to the extent that a given motion addresses that claim.

A. Mitchell Fails To Plausibly Allege A Claim For Termination In

Violation Of Public Policy (Count I).

Employment in Ohio, including employment with state or local government

bodies, is generally governed by the employment at-will doctrine. Wiles v. Medina

Auto Parts, 773 N.E.2d 526, 529 (Ohio 2002). Accordingly, an employer generally may

terminate an at-will employee for any reason at any time, and that terminated

employee may not sue the employer for wrongful discharge. Id. But there are

exceptions to this doctrine. One such exception, relevant here, allows a terminated

employee to bring a wrongful discharge claim when the discharge violates public

policy, which Ohio courts commonly refer to as a Greeley claim. Miracle v. Ohio Dep’t

of Veterans Servs., 137 N.E.3d 1110, 1113 (Ohio 2019) (citing Greeley v. Miami Valley

Maint. Contractors, Inc., 551 N.E.2d 981 (Ohio 1990)).

Making a claim for wrongful discharge in violation of public policy—a Greeley

claim—requires that a plaintiff establish each of four elements: (1) that a clear public

policy existed and was manifested either in a state or federal constitution, statute, or

administrative regulation, or in the common law (the “clarity element”); (2) that

dismissing employees under circumstances like those involved in the plaintiff’s

dismissal would jeopardize that public policy (the “jeopardy element”); (3) that the

plaintiff’s dismissal was motivated by conduct related to the public policy (the

“causation element”); and (4) that the employer lacked an overriding legitimate

business justification for the dismissal (the “overriding-justification element”).

Miracle, 137 N.E.3d at 1113 (citing Collins v. Rizkana, 652 N.E.2d 653, 657–58 (Ohio

1995)). The first two elements—clarity and jeopardy—are questions of law for a court

to decide. Collins, 652 N.E.2d at 658. Whereas, as a general matter, the last two

elements—causation and overriding-justification—involve factual issues for a

factfinder to decide. Id.

Here, the Fujitec Defendants2 challenge Mitchell’s ability to establish the

jeopardy requirement. (Fujitec Mot., Doc. 11, #76). The jeopardy element asks

whether “dismissing employees under circumstances like those involved in the

plaintiff’s dismissal would jeopardize the public policy.” Miracle, 137 N.E.3d at 1113.

In conducting that inquiry, the Court must:

(1) determine what kind of conduct is necessary to further the public

policy at issue; (2) decide whether the employee's actual conduct fell

within the scope of conduct protected by this policy; and (3) consider

whether employees would be discouraged from engaging in similar

future conduct by the threat of dismissal.

Allman v. Walmart, Inc., 967 F.3d 566, 574 (6th Cir. 2020) (citing Himmel v. Ford

Motor Co., 342 F.3d 593, 599 (2003)). Of particular importance here, the jeopardy

analysis also involves inquiring “into the existence of any alternative means of

promoting the particular public policy to be vindicated by a common-law wrongful

discharge claim.” Shingler v. Provider Servs. Holdings, L.L.C., No. 106383, 2018 WL

3414268, ¶ 22 (Ohio Ct. App. July 12, 2018). The Ohio Supreme Court in Wiles, 773

N.E.2d at 531, explained it like this:

2 For her part, McKenzie notes that she is not Mitchell’s employer, and thus he cannot bring

a wrongful termination claim against her. (McKenzie Mot., Doc. 10, #66). Although she does

not cite any Ohio case law to that effect, liability for the tort is predicated on the act of

dismissing an employee. And, as McKenzie observes, she did not have the power to dismiss

Mitchell. In his opposition, Mitchell does not respond on the wrongful termination claim as

to McKenzie. The Court thus agrees with McKenzie that Mitchell cannot maintain a wrongful

termination action against her. Accordingly, the Court DISMISSES the claim WITH

PREJUDICE as to her.

If the statute that establishes the public policy contains its own

remedies, it is less likely that tort liability is necessary to prevent

dismissals from interfering with realizing the statutory policy. Simply

put, there is no need to recognize a common-law action for wrongful

discharge if there already exists a statutory remedy that adequately

protects society’s interests.

That is, as a general matter, a plaintiff cannot use a statute or regulation as the basis

for a Greeley claim, if the statute or regulation at issue contains its own penalty

provisions. See Jakischa v. Cent. Parcel Express, 106 F. App’x 436, 440 (6th Cir. 2004)

(finding that the Ohio Revised Code provided “adequate statutory remedy” to

preclude a Greeley claim for wrongful discharge under the jeopardy prong).

This limitation presents a problem for Mitchell. Most of the public policies that

Mitchell cites appear to be related to race discrimination or retaliation for reporting

race discrimination. Ohio law—in particular O.R.C. § 4112—already provides a “full

panoply of remedies, including compensatory and punitive damages,” see Wakefield

v. Children’s Hospital, No. C2-06-1034, 2008 WL 3833798, at *8 (S.D. Ohio Aug. 13,

2008), that “adequately protects society’s interests,” Wiles, 773 N.E. 2d at 531, on

these issues. Thus, as in Wiles, “there is no need to recognize a common-law action

for wrongful discharge.” Id.

Separately, to the extent that the “public policies” to which Mitchell alludes

are related to Fujitec’s alleged failure to follow its own company policies, the claim

fails for a different reason. As the Sixth Circuit has noted, the clarity element

requires Mitchell to identify a clear public policy existed and was manifested in a

statute, rule, or the common law. See Jakischa, 106 F. App’x at 440 (“Since Greeley

was decided, the Ohio Supreme Court has held that the ‘clear public policy’ sufficient

to justify a wrongful-discharge claim ‘may also be discerned as a matter of law based

on other sources, such as the Constitutions of Ohio and the United States,

administrative rules and regulations, and the common law.’”) (quoting Painter v.

Graley, 639 N.E.2d 51, 52 (Ohio 1994)). Workplace policies are not included in that

list. Thus, if Mitchell’s reference to being terminated for “[a]sserting an employee’s

rights under the company policy,” (Compl., Doc. 1, #15, ¶ 75), is intended to invoke

Fujitec’s company policy as the basis for his claim, then that fails to satisfy the clarity

element.

For both of these reasons, Mitchell fails to allege a viable wrongful termination

claim under Ohio law. Thus, the Court DISMISSES that claim, but as this is

Mitchell’s original Complaint, the dismissal is WITHOUT PREJUDICE. The Court

GRANTS Mitchell 28 days to file an amended complaint addressing the above-

identified shortcomings, if he can do so.

B. Mitchell Plausibly Alleges A Claim For Defamation Against All The

Defendants Other Than Fujitec Co., Ltd. (Count II).

“Defamation is a false publication that injures a person’s reputation.” Fisher v.

Ahmed, 153 N.E.3d 612, 624 (Ohio Ct. App. 2020) (citation and quotation omitted).

There are two types of defamation, slander and libel: the former is spoken, the latter

is written. See id. The prima facie requirements for both are: (1) a false statement of

fact, (2) that was defamatory, (3) that was published, (4) that the plaintiff suffered

injury as a proximate result of the publication, and (5) that the defendant acted with

the requisite intent in publishing the statement. See id. (citing Am. Chem. Soc’y v.

Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012)). “It is for the court to decide as a

matter of law whether certain statements alleged to be defamatory are actionable or

not.” Am. Chem. Soc., 978 N.E.2d at 853 (quoting Yeager v. Local Union 20,

Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., 453 N.E.2d 666, 669 (Ohio

1983), abrogated on other grounds, Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007)

(recognizing false light as a tort independent from defamation)); Webber v. Ohio Dep’t

of Pub. Safety, 103 N.E.3d 283, 296 (Ohio Ct. App. 2017) (same).

In terms of the publishing element, “[p]ublication … is a word of art, which

includes any communication by the defendant to a third person.” Welling, 866 N.E.2d

at 1057. “[T]he publication requirement for defamation … only requires

communication to a third party.” Byrne v. Univ. Hosp., 2011-Ohio-4110, 2011 WL

3630483, at *7 (Ohio Ct. App. Aug. 18, 2011).

Even if all five elements of the tort are present, though, a defamation claim

still may fail. In particular, a given defendant may be able to invoke a “qualified

privilege” that prevents recovery for defamation. Hahn v. Kotten, 331 N.E.2d 713, 718

(Ohio 1975). One scenario that gives rise to such a privilege is when a publication “is

fairly made by a person in discharge of some public or private duty, whether legal or

moral, or in the conduct of his own affairs, in matters where his interest is concerned.”

Id. (quotation omitted). This “qualified privilege is recognized in many cases where

the publisher and the recipient have a common interest, and the communication is of

a kind reasonably calculated to protect or further it.” Id.

A qualified privilege based on a “common interest” often arises in the context

of an employment setting. Ohio law holds, for example, that “[g]enerally, a

communication made in good faith on a matter of common interest between an

employer and an employee, or between two employees concerning a third employee,

is protected by qualified privilege.” Sygula v. Regency Hosp. of Cleveland E., 64

N.E.3d 458, 467 (Ohio Ct. App. 2016) (quoting Kanjuka v. Metrohealth Med. Ctr., 783

N.E.2d 920, 931 (Ohio Ct. App. 2002)). Although the privilege does not extend to all

statements, it covers any “communication … reasonably calculated to protect or

further [the shared interest].” Hahn, 331 N.E.2d at 718 (quoting 50 Am. Jur. 2d 698,

Libel & Slander, § 195). Consistent with that, “[t]he elements necessary to establish

the privilege are good faith, an interest to be upheld, a statement limited in its scope

to this purpose, a proper occasion, and publication in a proper manner and to proper

parties only.” Kanjuka, 783 N.E.2d at 931 (internal quotations omitted).

Ohio law is also clear that this “qualified privilege doctrine applies to

communications made in connection with sexual harassment complaints.” Zapata v.

URS Energy & Constr., Inc., No. 3:13 CV 2203, 2015 WL 3953106, at *7–8 (N.D. Ohio

June 29, 2015) (citing Bisbee v. Cuyahoga Cnty. Bd. of Elections, 2001 WL 204174, at

*5–6 (Ohio Ct. App. 2001)); see also Gintert v. WCI Steel, Inc., No. 2002-T-0124, 2007

WL 4376178, at *6 (Ohio Ct. App. Dec. 14, 2007) (holding that statements reporting

sexual harassment are subject to qualified privilege); Turner v. Wolf, No. C-980712,

1999 WL 1127291, at *3–4 (Ohio Ct. App. Dec. 10, 1999) (same).

Importantly, though, the privilege is qualified, not absolute. An absolute

privilege would completely immunize a speaker who allegedly committed defamation.

By contrast, a qualified privilege, as its name suggests, can be overcome based on

certain showings. Two such situations can deprive a speaker of the intra-corporate

common-interest privilege. First, as the privilege is predicated on the need for

appropriate sharing of information within the corporate setting, the privilege is lost

if the communication at issue is not “made in a reasonable manner and for a proper

purpose,” Bisbee, 2001 WL 204174, at *5; Turner, 1999 WL 1127291, at *3 (same), or

is made to “someone outside of the qualified privilege.” Burrows v. Fuyao Glass Am.

Inc., No. 3:17-CV-00186-TMR, 2017 WL 6262189, at *8 (S.D. Ohio Dec. 8, 2017) (citing

Stearns v. Ohio Sav. Assoc., 472 N.E.2d 372 (Ohio Ct. App. 1984)). Second, the

qualified privilege is lost if the speaker acted with “actual malice.” Bisbee, 2001 WL

204174, at *5 (“Proof of actual malice is essential to defeat a qualified privilege.”);

Turner, 1999 WL 1127291, at *3 (same). As to the latter, Ohio law defines actual

malice “as acting with knowledge that the statements are false or acting with reckless

disregard as to their truth or falsity.” Zapata, 2015 WL 3953106, at *8 (citing Jackson

v. City of Columbus, 883 N.E.2d 1060, 1064 (Ohio 2008)); Bisbee, 2001 WL 204174, at

*6 (same); Turner, 1999 WL 1127291, at *4 (same).

Against that substantive legal backdrop, there is the separate issue of what is

required at the pleading stage, both in terms of the elements and in the face of a

qualified privilege defense. On that front, while the Court applies Ohio’s substantive

law to Mitchell’s state-law claims, the pleading requirements for those claims remain

governed by federal law. See, e.g., Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris,

D.D.S., P.A., 781 F.3d 1245, 1259 (11th Cir. 2015) (“[W]hen federal courts are sitting

in diversity or pendent jurisdiction only substantive state law must be applied, while

federal law governs matters of procedure.”) (internal quotations omitted); Leitch v.

Wal-Mart, Inc., No. 3:19-CV-235, 2020 WL 7398700, at *2 (S.D. Ohio Dec. 17, 2020)

(“And, although federal procedural law applies, federal courts apply state substantive

law in cases where the federal court is exercising supplemental or diversity

jurisdiction over state law claims.”); Lawless v. Steward Health Care Sys., LLC, 894

F.3d 9, 21 (1st Cir. 2018) (“Since the district court adjudicated the state-law claim

under supplemental jurisdiction, federal law supplies the applicable procedural rules

and state law supplies the substantive rules of decision.”).

Federal procedural law is clear that “Rule 9(b) does not apply to defamation

claims; those claims need only be stated in accordance with Rule 8 of the Federal

Rules of Civil Procedure.” Conocophillips Co. v. Shaffer, No. 3:05 CV 7131, 2005 WL

2280393, at *1 (N.D. Ohio Sept. 19, 2005); see also Wright v. Sodexho Marriott Servs.,

30 F. App'x 566, 567 (6th Cir. 2002) (holding that defamation claim is subject to Fed.

R. Civ. P. 8(a)(2)). As noted above, in addition to requiring notice to the defendant,

Rule 8 also contains a plausibility requirement under Twombly and Iqbal. So, the

plaintiff must plead sufficient facts to plausibly establish that each element of a

defamation claim is present.

Then there is the separate question of the pleading required when the

statement at issue appears to fall within a qualified privilege. Some Ohio courts

appear to hold that a mere allegation that a defendant acted with “malice” or with

knowledge of the statement’s falsity is enough to survive a motion to dismiss. See,

e.g., Mangelluzzi v. Morley, 40 N.E.3d 588, 597 (Ohio Ct. App. 2015) (“Here, even

assuming that a qualified privilege attached to the communications published to the

governmental entities identified in the complaint, the complaint pled that the

[defendants] acted with ‘malice.’”); Denlinger v. City of Columbus, No. 00AP-315, 2000

WL 1803923, at *9 (Ohio Ct. App. Dec. 7, 2000) (holding a complaint that alleges

statements were made “with knowledge or [sic] their falsity, or with reckless

disregard as to their truth” did not entitle defendants to dismissal based on the

qualified privilege).

As noted, though, federal law governs pleading standards in federal court. And

given the plausibility requirement, a complaint asserting a defamation claim as to

which the actual malice standard applies must “set forth facts establishing [that the]

statements [were] made with malice” to avoid dismissal. Carovac v. Lake Cnty. Bd.

of Dev.’l Disabilities/Deepwood, No. 1:19-cv-2344, 2020 WL 5423966, at *5 (N.D. Ohio

Sept. 9, 2020); see also, e.g., Hengjun Chao v. Mount Sinai Hosp., 476 Fed. App’x 892,

895 (2d Cir. 2012) (dismissing defamation claim where plaintiff failed to allege facts

supporting plausible inference of malice). But, again, as a matter of substantive law,

malice merely means knowledge of falsity or reckless disregard for the truth.

1. Mitchell Has Pled A Viable Defamation Claim Against McKenzie.

Using that legal framework, the Court starts with McKenzie’s arguments for

dismissing the defamation claim: (1) that Mitchell failed to identify the allegedly

defamatory statements with sufficient specificity; (2) that the alleged statements

were not published to a third party (a qualified-immunity defense); and (3) there is

no evidence of harm.

a. Mitchell Identified The Allegedly Defamatory Statements

With Sufficient Specificity.

McKenzie’s first argument challenges whether Mitchell’s Complaint plausibly

alleges that she made a defamatory statement. Whether a given statement is

defamatory is a matter of law for the Court to decide. Am. Chem. Soc’y, 978 N.E.2d

at 853. “Actionable defamation falls into one of two categories: defamation per se or

defamation per quod.” McClure v. Ohio Dept. of Rehab. And Corr., No. 19AP-535, 2020

WL 1320713, at *2 (Ohio Ct. App. Mar. 19, 2020). As to the former, damages are

assumed, but as to the latter, a plaintiff must plead, and ultimately prove, “special

damages” which are “direct financial losses resulting from the plaintiff’s impaired

reputation.” Id.; see also, e.g., Dudee v. Philpot, 133 N.E.3d 590, 604 (Ohio Ct. App.

2019) (“In an action for defamation per quod, special damages must be pled and

proven.”).

Defamation per se under Ohio law is limited to statements that “fit within one

of four classes: (1) the words import a charge of an indictable offense involving moral

turpitude or infamous punishment; (2) the words impute some offensive or contagious

disease calculated to deprive a person of society; (3) the words tend to injure a person

in his trade or occupation; and (4) in cases of libel only, the words tend to subject a

person to public hatred, ridicule or contempt.” McClure, 2020 WL 1320713, at *2; see

also, e.g., Dudee, 133 N.E.3d at 604 (listing the first three categories above as those

applicable to defamation per se for oral statements). In terms of specificity, “[a]

defamation complaint must allege the substance of the allegedly defamatory

statements,” but “need not … set [them] out verbatim.” Doe v. Univ. of Dayton, No.

3:17-cv-134, 2018 WL 1393894, at *5 (S.D. Ohio Mar. 20, 2018).

So, let’s see how the allegations in the Complaint stack up. To be sure, the

Complaint does not purport to quote McKenzie, but the alleged facts give rise to a

plausible inference that she reported that Mitchell had sexually harassed her, in

particular by grabbing her around the waist, without her consent, in the company

kitchen area. Whatever specific form a statement of that nature took, it seems of the

type that would “tend to injure a person in his trade or occupation.” See, e.g.,

Shoemaker v. Cmty. Action Org. of Scioto Cnty., 2007 WL 2070365, at *4 (Ohio Ct.

App. July 16, 2007) (holding that false allegation of sexual harassment constituted

defamation per se when it “caused [plaintiff] to lose his job”). When such allegations

are true, “injury” to the harasser in his trade or occupation (i.e., an adverse

employment action), may well be an appropriate response. But that is a separate

issue. For defamation purposes, there can be little doubt that false allegations of such

conduct—whatever their exact phrasing—can cause sufficient injury to support a

defamation claim.

That is enough to establish the “substance” of the alleged statement. To be

sure, at summary judgment, Mitchell may well be required to prove more about the

substance of the statements than he has here. But, under Fed. R. Civ. P. 8, the only

question is whether he has cleared the plausibility hurdle, and he has here.

b. Mitchell Has Pled Sufficient Facts To Overcome The

Qualified Immunity Defense At The Pleading Stage.

To get beyond dismissal, Mitchell must also allege facts plausibly establishing

that the qualified privilege does not apply. He has done so here.

As described above, a speaker loses the qualified privilege if his or her

statement is made with actual malice, which includes knowledge of falsity. Here, the

statement from McKenzie at issue is something of the form—“Mitchell grabbed me

around the waist while in the kitchen at work.” Mitchell says that statement is false.

Crediting Mitchell’s allegation, as the Court must at the motion-to-dismiss stage, the

Court concludes, for present purposes, that McKenzie made a knowingly false

statement. That deprives her of the privilege. As the court put it in JM Adjustments

Services, LLC v. J.P. Morgan Chase Bank, N.A., No. 16-10630, 2016 WL 3913712, at

*8 (E.D. Mich. July 20, 2016): “There exists a factual dispute as to whether Defendant

had a good faith basis for the publication. At this stage in the proceedings, [plaintiff]

is only required to plausibly plead malice, not prove it.”

The Court concedes that this result is troubling in at least one regard. As

McKenzie notes in her Motion, there is a strong public policy in favor of reporting

workplace misconduct. The pleading rule reflected above, as she also notes, could

have a chilling effect on such reporting. Essentially, any time a sexual harassment

claim includes objectively verifiable facts (e.g., “Employee A inappropriately touched

me at the office party”), and the accused person disputes those facts in his or her

complaint in an objectively verifiable way (e.g., “I was never even in the same room

as my accuser at that party”), that appears to be enough to survive dismissal. In such

cases, the plaintiff’s allegation, if believed, necessarily entails that the defendant is

lying, which under Ohio law deprives that person of the qualified privilege. See

Gintert, 2007 WL 4376178, at *6 (holding that qualified privilege would not apply if

a sexual harassment allegation is false).

That means that such claims are not subject to dismissal. Indeed, if it truly

comes down to a credibility determination between two parties, the claim may even

proceed past summary judgment. But that in turn means that those who honestly

report workplace misconduct may be subject to potentially significant litigation costs

in establishing their report’s veracity. Nor is that the end of the litigation that this

approach may spawn. Those accused of defamation in such cases sometimes respond

by themselves counterclaiming for retaliation. See, e.g., Hughes v. Miller, 909 N.E.2d

642, 643–44 (Ohio Ct. App. 2009) (allowing counterclaim for retaliation against

defamation plaintiff to proceed even after plaintiff’s defamation claim dismissed);

Bahar v. Youngstown, No. 09 MA 55, 2011 WL 773403, at *3 (Ohio Ct. App. Feb. 25,

2011). The resulting morass of litigation seems potentially at odds with the public

interest in identifying and remedying workplace misconduct.

Perhaps one way of addressing the types of public policy concerns that

McKenzie identifies would be to require, for defamation claims of this type, a

heightened showing of malice at the pleading stage—some kind of “actual falsity plus”

standard, where the “plus” would reflect a requirement that a plaintiff provide some

additional facts creating a plausible reason to believe why an accuser may have

leveled knowingly false allegations. But that does not work here for two reasons.

First, it does not appear that Ohio law has adopted any such requirement. And, under

Erie, this Court’s job in adjudicating Ohio state-law claims is to ensure that “the

outcome of the litigation in the federal court should be substantially the same, so far

as legal rules determine the outcome of a litigation, as it would be if tried in a State

court.” Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 109 (1945).

Second, even if this Court were free to add such a requirement to an Ohio

common-law claim for defamation, Mitchell has met it here. His Complaint includes

a relatively detailed account of why he believes McKenzie would be likely to make

false allegations against him. In particular, he recounts that he had been

investigating McKenzie and a colleague for workplace misconduct, misconduct that

placed McKenzie herself at risk of termination. Against that backdrop, he alleges that

McKenzie made a preemptive strike against him, so that if she were to suffer an

adverse employment action as a result of his investigation, she could claim

retaliation. Again, at the pleading stage the question is merely one of plausibility,

and such allegations, if true, give rise to a plausible motive for McKenzie to file a

complaint against Mitchell. Thus, even if “motive” allegations were required, Mitchell

has provided them here.

c. Mitchell Has Plausibly Alleged Evidence Of Harm.

One of the elements of defamation is that the statement caused harm. In her

final argument for dismissal, McKenzie claims there are insufficient allegations that

her alleged statements here caused Mitchell’s identified harm (i.e., his termination).

She notes that Mitchell himself concedes that Krupp, in telling Mitchell he was

terminated, pointed to Mitchell’s alleged mishandling of allegations relating to

Gibson’s wrongdoings as the basis for that termination decision. That is, Krupp did

not tie the termination to McKenzie’s allegations of sexual harassment. McKenzie

argues that, because Fujitec had sufficient alternative grounds to fire Mitchell

independent of her sexual harassment allegations, and actually stated those

alternative grounds were the basis for dismissal, Mitchell’s defamation claim against

her fails.

In addressing that argument, the Court begins by noting that, under Ohio law,

damages for defamation come in two forms. When dealing with defamation per se,

damages are assumed. For defamation per quod, on the other hand, a plaintiff must

prove “special damages” which are “direct financial losses resulting from the

plaintiff’s impaired reputation.” McClure, 2020 WL 1320713, at *2; see also, e.g.,

Dudee, 133 N.E.3d at 604 (“In an action for defamation per quod, special damages

must be pled and proven.”).

As noted above, Ohio law treats false allegations of sexual harassment as

defamation per se. See, e.g., Shoemaker, 2007 WL 2070365. In Shoemaker, for

example, the court observed that: “Shoemaker testified that the statements

concerning his alleged sexual harassment of a co-worker were false and caused him

to lose his job. Accordingly, he presented a claim of defamation per se and had no

need to plead or prove special damages.” Id. at *4. The “pleading” part of that

statement is irrelevant for present purposes, as pleading standards in this case are

supplied by federal law. But the “prove” part of that statement does matter—it means

that Ohio’s substantive law does not require any showing of special damages for

defamation of the type allegedly at issue here, and that Mitchell is entitled to “at least

nominal damages” even if he could show no actual damages. Id. at *3.

Separately, even were that not the case—that is, even if the statements here

are defamation per quod—Mitchell has identified direct financial losses (his salary)

resulting from his impaired reputation. To be sure, Krupp stated he was tying the

termination to events relating to Mitchell’s treatment of Gibson, but Mitchell is not

required to accept Krupp’s explanation without further investigation. Indeed, the

timing alone makes the potential causal link to McKenzie’s allegations at least

plausible—Mitchell is investigated for sexual harassment, he is then informed the

company has concluded that the allegations are well founded, and that very day he is

terminated. What is more, Mitchell alleges that the Gibson incident occurred “years

prior” to Mitchell’s termination, and that his knowledge about Gibson’s misconduct

only “arose out of rumors.” (Compl., Doc. 1, #12, ¶ 59). Using a common-sense

standard, that plausibly establishes a causal link, at least for pleading purposes,

between McKenzie’s complaint and Mitchell’s termination. Iqbal, 556 U.S. at 679

(noting that plausibility determination is a matter of “judicial experience and

common sense”). To be sure, if discovery does not bear out that link, that will present

a problem for Mitchell on summary judgment. But Mitchell has alleged enough at

this stage to get beyond dismissal.

In short, Mitchell has plausibly alleged a claim of defamation against

McKenzie for her (allegedly) knowingly false reports of sexual harassment.

2. Mitchell Has Pled A Viable Defamation Claim Against Gary

Krupp And Fujitec America, Inc., But Not Against Fujitec Co.,

Ltd.

The analysis involving Gary Krupp gets to the same endpoint, but via a slightly

different route. Mitchell alleges that Krupp discussed with colleagues the same

allegations made by McKenzie. Thus, the substance of those statements suffices on

the defamation front for the same reason that it did with regard to McKenzie.

As with McKenzie, Krupp also claims that the statements, even if he made

them, are subject to a qualified privilege. And, he says, Mitchell has not pled any facts

showing that Krupp knew that the statement was untrue.

Krupp is in a somewhat different boat than McKenzie as to known falsity. He

is not alleged to have been present when the activity occurred, and thus may have a

good faith belief in McKenzie’s account, even if her report is false. But knowing a

statement is false is only one of two ways by which a speaker can lose the benefit of

the qualified privilege. The qualified privilege for intra-corporate communications is

also lost if the publication is not “made in a reasonable manner and for a proper

purpose.” Bisbee, 2001 WL 204174, at *5; Turner, 1999 WL 1127291, at *3 (same). So,

for example, if Krupp had republished the statements in connection with the

investigation of them, that publication would fall within the privilege (absent

allegations plausibly establishing that he knew the statements were false). But, here,

Mitchell alleges that the republishing occurred at a social gathering with other

employees. In other words, Mitchell claims that Krupp defamed him by spreading

workplace gossip. That at least plausibly suggests that the republishing may not have

been in furtherance of any corporate investigation, but instead was for Krupp’s own

purposes. If that is the case, then the qualified privilege would not apply. So, reading

the allegations in the light most favorable to Mitchell, as the Court must, that is

enough to get beyond Rule 12(b)(6).

The corporate defendants, on the other hand, suggest that Mitchell’s claim fails

because it does not allege that the corporations themselves said anything. That works

as to the Fujitec Co. Ltd. (the parent company), but not as to Fujitec America. As for

the latter, Krupp is alleged to be the CEO of the company. Thus, his tortious conduct

and statements in his role as CEO could be imputed to the corporation for which he

serves as the lead executive officer. See Gallagher v. Stonegate Mortg. Corp., No.

99684, 2013 WL 6858040, at *6 (Ohio Ct. App. Dec. 26, 2013) (holding corporation

liable for defamation because defendant CEO “used his position” to defame plaintiff).

That is enough, for now, to allow the claim to go forward.

For the parent company, though, that is not the case. As a general matter, the

common law treats separate corporate entities separately, even if they are parent and

subsidiary. See, e.g., Excel Energy, Inc. v. Cannelton Sales Co., 337 F. App’x 480, 485

(6th Cir. 2009) (“[S]ubsidiaries are separate and distinct legal entities from

their parents and only if there is reason to pierce the corporate veil will a court treat

a parent and a subsidiary as a single entity.”). Mitchell would need to plead some fact

creating a plausible inference that the subsidiary was acting as an agent for the

parent with regard to the statements at issue. He has pled no such thing. Thus, the

claim fails against Fujitec Co. Ltd.

In sum, Mitchell has pled a viable defamation claim against McKenzie, Krupp,

and Fujitec America, but not against Fujitec Co. Ltd. Thus, the Court DISMISSES

Mitchell’s defamation claim WITH PREJUDICE, but only with respect to Fujitec

Co. Ltd.

C. Mitchell Fails To Plausibly Allege A Claim For Invasion of

Privacy (Count III) Or False Light (Count IV).

Under Ohio law, in order to establish a claim for invasion of privacy by

publication of private facts, a plaintiff must show five elements:

(1) There must be publicity; the disclosure of a public nature, not

private. “Publicity” means communicating the matter to the public at

large, or to so many persons that the matter must be regarded as

substantially certain to become one of public knowledge as opposed to

“publication” that term of art is used in connection with liability for

defamation as meaning any communication by the defendant to a third

person.

(2) The facts disclosed must be those concerning the private life of an

individual, not his public life. There is no liability when the defendant

merely gives further publicity to information about the plaintiff that is

already public, such as matters of public record about his birth or

marriage date, or matters that the plaintiff leaves open to the public eye,

such as kissing his spouse in public.

(3) The matter publicized must be one which would be highly offensive

and objectionable to a reasonable person of ordinary sensibilities.

(4) The publication must have been made intentionally, not negligently.

(5) The matter publicized must not be a legitimate concern to the public.

A newspaper's publicizing “legitimate news” ordinarily will not be

actionable.

Early v. The Toledo Blade, 720 N.E.2d 107, 135–36 (Ohio Ct. App. 1998) (quotation

omitted).

Measured against this standard, Mitchell’s claim fails for two reasons. First,

Mitchell fails to plausibly allege that Krupp, the sole Defendant against whom he

asserts this claim, “publicized” Mitchell’s alleged sexually harassing behavior to the

extent necessary to sustain an invasion of privacy claim. At most, Mitchell contends

that Krupp improperly “discussed the details of the [sexual harassment] inquiry with

several Fujitec employees during a social gathering.” (Compl., Doc. 1, #8, ¶ 42).

Sharing information within the corporation with “several” employees is not

“communicating the matter to the public at large.” Early, 720 N.E.2d at 135. Thus,

the claim fails as a matter of law.

Second, the crux of an invasion of privacy claim is that the defendant has

shared true, but private, facts about the plaintiff. Here, Mitchell alleges that Krupp

shared untrue facts. That may give rise to a claim for defamation, but it does not

support a claim for invasion of privacy. The Court thus DISMISSES the claim but

WITHOUT PREJUDICE, as this is the first dismissal of this claim. The Court

GRANTS Mitchell leave to file an amended complaint, within twenty-eight days,

addressing the above-identified shortcomings, if he can.

D. Mitchell Fails To Plausibly Allege A Claim For False Light

(Count IV).

The tort of false light subjects a defendant to liability for invasion of privacy if

(1) “the false light in which the other was placed would be highly offensive to the

reasonable person,” and (2) “the actor had knowledge or acted with reckless disregard

as to the falsity of the publicized matter and the false light in which the other would

be placed.” Welling, 866 N.E.2d at 1059. Adopting the Restatement (Second) of Torts

definition for false-light invasion of privacy, the Ohio Supreme Court in Welling, 866

N.E.2d at 478, recognized that “[t]he requirements imposed by the Restatement make

a false-light claim difficult to prove.”

Of particular importance here, a false light claim, like an invasion of privacy

claim, requires that “the information must be ‘publicized,’ which is different from

‘published.’” Id. at 1057. “Publicity … means that the matter is made public, by

communicating it to the public at large, or to so many persons that the matter must

be regarded as substantially certain to become one of public knowledge.” Id.

Something that is publicized “reaches, or is sure to reach, the public.” Id. (quoting

Restatement (Second) of Torts, § 652D, cmt. a).

For the same reason that Mitchell’s allegations failed to show “publicity” to

support the invasion of privacy claim, they also fail to establish that element of a false

light claim. Gossip shared among a few coworkers, even in a public place, does not

amount to publicity. The Court thus DISMISSES the claim but WITHOUT

PREJUDICE, as this is the first dismissal of this claim. The Court GRANTS

Mitchell leave to file an amended complaint, within twenty-eight days, addressing

the above-identified shortcomings, if he can.

E. The Court Dismisses Mitchell’s Claim For Breach Of Implied Contract

Against The Fujitec Corporate Defendants, But Does So Without

Prejudice (Count V).

It appears that Mitchell asserts the breach-of-implied-contract claim only

against Fujitec America, his employer.3 As a general matter, to successfully state a

breach of implied contract claim under Ohio law in federal court, a plaintiff must

plausibly allege “the existence of a contract, performance by the plaintiff, breach by

the defendant, and damage or loss to the plaintiff.” Johnson v. Delphi Corp., 261 F.

Supp. 2d 955, 961 (S.D. Ohio 2003). The Fujitec Defendants’ principal contention here

seems to be that Mitchell has not plausibly alleged a contract exists. In particular,

the parties dispute whether he can rely on “employee handbooks, company policies,

and/or oral representations by persons authorized to bind the Company” to meet that

element. (Compl., Doc. 1, #18, ¶ 98).

Fujitec disputes Mitchell’s position, claiming that it is “well settled under Ohio

law that employee handbooks and employer policies are not in and of themselves

contracts of employment.” (Fujitec Mot., Doc. 11, #80). It purports to find that

proposition in Finsterwald-Maiden v. AAA S. Cent. Ohio, 685 N.E.2d 786, 789 (1996).

But that overreads Finsterwald-Maiden. The case does not say that employee

handbooks cannot be contracts, but merely that they are not necessarily contracts.

3 The only “implied contract” he cites is one “between Plaintiff and Fujitec,” with “Fujitec”

identified later in that same paragraph as the “Company.” (Compl., Doc. 1, #18, ¶98). The

Company is a defined term referring to Fujitec America. Thus, to the extent he purports to

assert this Count against either McKenzie or Krupp, the claim is DISMISSED WITH

PREJUDICE.

Indeed, in the passage immediately before the language defendants cite, the court

made exactly that point:

“[A]t will” is only a description of the parties’ prima facie employment

relationship. That description intimates nothing about subsidiary

contractual arrangements an employer may make by adding new terms

and conditions to the relationship. If an employer makes a subsidiary

contractual arrangement, the employer may be legally obligated to

comply with it. An employee handbook may create such a contractual

arrangement.

Id. at 789 (emphasis added). To that end, “an employee handbook can create a binding

contract if it contains clear promissory language that the employee accepts by

continuing to work after receiving it.” Galgoczy v. Chagrin Falls Auto Parts, Inc.,

2010-Ohio-4684, 2010 WL 3816328, at *1 (Ohio Ct. App. Sept. 30, 2010) (citing Mers

v. Dispatch Printing Co., 483 N.E.2d 150 (Ohio 1985) (paragraph two of the syllabus)).

That being said, the Court agrees with the Fujitec Defendants that, at least so

far, Mitchell has fallen short in identifying either (1) the specific substantive portions

of the employee handbooks, company policies, or oral representations that create the

alleged contractual obligations at issue, and (2) the “clear promissory language” in

those handbooks, policies, or representations that entitle Mitchell to rely on them as

contractual obligations. But that does not mean that such language does not exist.

Accordingly, the Court DISMISSES WITHOUT PREJUDICE the breach-of-

implied-contract claim against the Fujitec corporate defendants, and GRANTS

Mitchell leave, within twenty-eight days, to amend his allegations in this Count to

provide additional factual detail giving rise to a plausible inference that the materials

to which he cites create implied contractual obligations.

F. Mitchell’s Claim For Breach Of Good Faith And Fair Dealing Fails As

A Matter Of Law (Count VI).

Under Ohio law, breach of the implied covenant of good faith and fair dealing

is not a standalone claim. Frisch v. Nationwide Mut. Ins. Co., 553 Fed. App’x 477, 482

(6th Cir. 2014). That is equally true in the employment context, as “Ohio does not

recognize a cause of action for breach of an implied covenant of good faith and fair

dealing in the case of a wrongful discharge of an at-will employee.” Borowski v. State

Chem. Mgf. Co., 647 N.E.2d 230, 236 (Ohio Ct. App. 1994). In short, although

Mitchell’s claim for breach of implied contract may include a claim for breach of this

covenant, the covenant does not provide a standalone claim. Accordingly, the Court

DISMISSES this claim WITH PREJUDICE.

G. Mitchell’s Claim For Promissory Estoppel (Count VII).

“The elements of promissory estoppel are: (1) a clear, unambiguous promise;

(2) reliance upon the promise by the person to whom the promise is made; (3) the

reliance is reasonable and foreseeable; and (4) the person claiming reliance is injured

as a result of reliance on the promise.” Jelinek v. Abbott Labs., No. 01AP-217, 2001

WL 1045534, at *4 (Ohio Ct. App. Sept. 13, 2001). “The doctrine of promissory

estoppel is applicable to at-will employment relationships.” Id. “[T]he test in such

cases is whether the employer should have reasonably expected its representation to

be relied upon by its employee and, if so, whether the expected action or forbearance

actually resulted and was detrimental to the employee.” Id.

The only element that the Fujitec Defendants dispute is “any specific

promises.” (Fujitec Mot., Doc. 11, #82). But Mitchell’s Complaint lists six specific

promises that Fujitec allegedly made. (Compl., Doc. 1, #20, ¶108). Those promises

appear sufficiently specific to the Court to support a claim for promissory estoppel.

Indeed, one of the alleged promises goes to the magnitude of Mitchell’s annual bonus,

which he says was promised to the one-tenth-of-one-percent. (Id. (alleging Fujitec

promised to pay “an annual bonus of 17.5%”)). Mitchell may, or may not, have

difficulty showing that these promises were actually made, or in meeting some of the

other elements of this claim. But, the Fujitec Defendants’ argument that he has not

identified any specific promises falls short.

Accordingly, the Court DENIES the Fujitec Defendants’ Motion to Dismiss the

promissory estoppel count.4

H. Title VII Discrimination (Count VIII).

Various Defendants seek dismissal of the Title VII discrimination claim on

differing grounds. McKenzie urges dismissal because she is Mitchell’s co-worker, not

his employer. In a related defense, Krupp argues for dismissal given that Title VII

does not impose individual liability. Finally, all three Fujitec Defendants (Krupp and

the two corporate entities) request dismissal on the grounds that Mitchell failed to

identify in his Complaint the similarly situated Caucasian employees who allegedly

received better treatment. The Court will address the arguments in that order.

To start, McKenzie rightly states that Mitchell does not have a viable Title VII

claim against her. “Title VII does not permit individual liability.” Hopkins v. Canton

4 The promissory estoppel count does not identify any promises that McKenzie allegedly made

to him. Thus, to the extent that Mitchell is purporting to assert this count against McKenzie,

the Court DISMISSES the claim WITH PREJUDICE as to her.

City Bd. Of Educ., 477 F. App’x 349, 360 (6th Cir. 2012). As noted below, a narrow

exception to that rule exists for supervisors, who can sometimes be sued in their

“official capacities,” but that exception does not extend to McKenzie, who is not

alleged to be Mitchell’s supervisor. Thus, the Title VII discrimination claim against

McKenzie is DISMISSED WITH PREJUDICE.

The analysis is a little different as to Krupp. It is true that Title VII does not

include individual liability, even for supervisors. Indeed, “[t]he law in this Circuit is

clear that a supervisor who does not otherwise qualify as an employer cannot be held

personally or individually liable under Title VII.” Little v. BP Expl. & Oil Co., 265

F.3d 357, 362 (6th Cir. 2001) (citing Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th

Cir. 1997)). That being said, “there is support for the proposition that a supervisor

may be held liable in his or her official capacity upon a showing that he or she could

be considered the ‘alter ego’ of the employer,” id. at 362, n.2, although the Sixth

Circuit has not definitively ruled on the issue. What is more, “district courts in this

circuit have considered this alter ego theory of individual liability ‘with skepticism.’”

Bender v. Gen. Dynamics Land Sys., Inc., No. 2:19-CV-13177, 2020 WL 4366049, at

*3 (E.D. Mich. July 30, 2020) (citing Doe v. Grand Co., LLC, No. 18-cv-13123, 2020

WL 806031, at *9 (E.D. Mich. Feb. 18, 2020) (collecting cases)).

That being said, to the extent that the exception exists, it could perhaps sweep

in Krupp, who is Fujitec America’s CEO. But, then a separate problem emerges.

“[T]he employer and only the employer can be responsible for any relief the employee

obtains, even if under the official capacity theory.” Ankofski v. M&O Mktg., Inc., 218

F. Supp. 3d 547, 553 (E.D. Mich. 2016) (citing Cautela v. Ohashi Tecnica U.S.A., Inc.,

No. 2:08-cv-960, 2009 WL 2431090, at *3–4 (S.D. Ohio Aug. 6, 2009)). Thus, “when

an employee has already sued a corporate employer under Title VII, an official

capacity suit against a supervisor adds nothing to the litigation.” Id. (citing Maudlin

v. Inside Out Inc., No. 3:13-CV-00354-TMR, 2014 WL 1342883, at *3 (S.D. Ohio Apr.

3, 2014)). As “an official capacity suit is redundant and duplicative of the suit against

[the employer],” the Court DISMISSES the claim against Krupp WITH

PREJUDICE. Maudlin, 2014 WL 1342883, at *4.

With those preliminaries out of the way, the Court turns to the claim against

the corporate defendants.5 The sole basis for their request for dismissal is their belief

that Title VII pleading standards require the plaintiff to identify the comparators for

his race discrimination claim. Although Mitchell claims no such requirement exists,

there is case law suggesting that plausibility requires at least some identification of

those who allegedly received better treatment. See Sammons v. Cardington Yutaka

Techs., Inc., No. 2:08-cv-988, 2009 WL 961168 *3 (S.D. Ohio April 7, 2009). And even

the case on which Mitchell relies to dispute that requirement, Turner v. UPS,

acknowledged that a Title VII claim “will typically require at least some degree of

detail regarding any comparator employees on which a plaintiff relies, in order for

the court to evaluate whether … an inference [of discrimination] can be drawn.” No.

5 Interestingly, the parent company did not rely on its corporate separateness to seek

dismissal of the claim against it. As such, the Court declines to comment on that potential

theory.

3:19-CV-00476, 2019 WL 5190992, at *4 (M.D. Tenn. Oct. 15, 2019). Mitchell has

failed to provide any such detail here.

Accordingly, the Court DISMISSES the Title VII discrimination claim against

the corporate defendants, but WITHOUT PREJUDICE. The Court GRANTS

Mitchell leave to make good on the representation in his motion that he can file an

amended pleading providing additional detail regarding those comparator employees.

And the Court provides Mitchell twenty-eight days in which to do so.

I. Mitchell Fails To State A Viable Title VII Retaliation Against

McKenzie Or Krupp (Count IX).

Only McKenzie and Krupp seek dismissal of the Title VII retaliation count. As

with the Title VII discrimination count, the crux of their argument is that Title VII

does not impose individual liability. For the same reasons that the Court dismissed

the Title VII discrimination claim, the Court also DISMISSES WITH PREJUDICE

the Title VII retaliation claims against these two defendants.

J. The Court Dismisses The State-Law Discrimination Claims As To All

Defendants, But Does So Without Prejudice (Count X).

In addition to a Title VII discrimination claim, Mitchell also asserts a race

discrimination claim under corresponding Ohio law. See generally O.R.C. § 4112. The

pleading standards are the same for both. Garcar v. City of Youngstown, No.

4:17CV1698, 2019 WL 969401, at *1 (N.D. Ohio Feb. 28, 2019) (“The Court observes

that Chapter 4112 of the Ohio Revised Code tracks Title VII of the federal Civil Rights

Act of 1964 both with respect to substantive law and evidentiary standards.”); Finley

v. City of Trotwood, 503 F. App’x 449, 452 (6th Cir. 2012). (“Although this case

involves both Title VII and Ohio antidiscrimination law, the same analysis applies to

both.”). The one exception is that Ohio law allows for individual liability, while, as

noted above, Title VII does not. Finley, 503 F. App’x at 452, n.2.

But that exception may matter. McKenzie seeks dismissal of this claim

principally on the ground that she is not Mitchell’s employer. But, under Ohio law,

that is not dispositive, as Mitchell can sue any individual who engaged in

discriminatory conduct. That being said, he must also set forth a plausible claim, and

McKenzie argues that Mitchell has “failed to allege or provide any factual support”

for this claim. Here, the only alleged act by McKenzie in the long list of allegedly

discriminatory acts was “making false allegations of harassment.” (Compl., Doc. 1,

#24). But nowhere in his Complaint does Mitchell suggest any reason to believe that

McKenzie made such false allegations based on his race. To the contrary, he alleges

that she did so to avoid suffering the consequences for her own workplace misconduct.

That may be an inappropriate motive, but it is not race discrimination. Accordingly,

the Court DISMISSES Count X against McKenzie, but does so WITHOUT

PREJUDICE, as this is the first dismissal of the claim.

As against the Fujitec Defendants, including Krupp, the state-law

discrimination claim has the same problem that the Title VII one did—insufficient

identification of the allegedly-better-treated employees. Accordingly, the Court

DISMISSES the state-law discrimination claim against these defendants, but again

does so WITHOUT PREJUDICE. The Court GRANTS Mitchell leave to file an

amended complaint, within twenty-eight days, addressing the above-identified

shortcomings, if he can.

K. The State-Law Retaliation Claims Fail As A Matter Of Law To The

Extent They Are Asserted Against McKenzie (Count XI).

The only Defendant who seeks dismissal of the state-law discrimination claim

is McKenzie. In support, she notes that she is not Mitchell’s employer. That does not

seem to defeat a state-law discriminatory retaliation claim (as state law allows for

individual liability), but Mitchell makes no argument in response. Accordingly, any

argument he may have made is waived. Moreover, the Court’s independent review of

the allegations in that count identify no allegedly retaliatory conduct by McKenzie.

Accordingly, for both reasons, the Court DISMISSES the state-law retaliation claim

against McKenzie WITH PREJUDICE.

L. Mitchell Fails To Plausibly State A Claim For Intentional Infliction of

Emotional Distress Against Any Defendant (Count XII).

Under Ohio law, a “claim for intentional infliction of emotional distress

requires proof of the following elements: ‘(1) the defendant either intended to cause,

or knew or should have known, that his actions would result in serious emotional

distress; (2) the defendant’s conduct was so extreme and outrageous that it went

beyond all possible bounds of decency and can be considered completely intolerable

in a civilized community; (3) the defendant’s actions proximately caused psychological

injury to the plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature

no reasonable person could be expected to endure it.’” Walters v. Carter, No. 108555,

2020 WL 1066063, at *7 (Ohio Ct. App. Mar. 5, 2020) (quoting Ashcroft v. Mt. Sinai

Med. Ctr., 588 N.E.2d 280 (Ohio Ct. App. 1990)). Here, the defendants’ arguments

are principally directed at the “extreme and outrageous” conduct element, specifically

that Mitchell has not alleged any conduct that meets that standard. The Court finds

those arguments persuasive.

“Extreme and outrageous” is a high bar. “Conduct giving rise to an IIED claim

must be ‘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.’” Kovac v. Superior Dairy, Inc., 930 F.Supp.2d 857, 869–70

(N.D. Ohio 2013) (citing Long v. Ford Motor Co., 193 Fed. App’x 497, 503 (6th Cir.

2006)). And the bar is, if anything, even higher in the employment context. Culler v.

Exal Corp., 193 F. Supp. 3d 850, 852–53 (N.D. Ohio 2016) (“Ohio places a particularly

high bar on ‘extreme and outrageous’ conduct in the employer-employee

relationship.”). Moreover, the question of whether conduct is “extreme and

outrageous” is a matter of law for the Court. Mender v. Chauncey, 2015-Ohio-4105,

41 N.E.3d 1289, 1299 (Ohio Ct. App. 2015). That means a ruling “in defendant’s favor

is warranted when the conduct is not, as a matter of law, ‘extreme and outrageous.’”

Id. at ¶ 25.

Importantly, at least one Ohio court has held as a matter of law that “falsely

accusing [the plaintiff] of engaging in sexual harassment and violating” the

company’s policies, is not extreme or outrageous conduct. Adkins v. DuPont Vespel

Parts & Shapes, Inc., No. 88352, 2007 WL 1643208, at * 2 (Ohio Ct. App. June 7,

2007). Given the high bar for showing extreme and outrageous conduct, that seems a

correct statement of Ohio law.

Against that backdrop, Mitchell’s Complaint fails to allege that the Defendants

engaged in “extreme and outrageous” conduct. At bottom, Mitchell alleges that

McKenzie made false allegations that he sexually harassed her. While false

allegations such as those—if in fact they were false—may be reprehensible, they fall

short of extreme and outrageous. And Krupp, at most, appears to have shared those

allegations with co-workers in a social setting. Again, that may well have been

inappropriate, but it is well short of extreme and outrageous. Thus, even if the

individual Defendants intentionally undertook that activity for the purpose of

inflicting emotional harm on Mitchell, such conduct simply does not give rise to a

claim for intentional infliction.

In short, Mitchell has not plausibly alleged the necessary elements for an

intentional infliction of emotional distress claim. The Court thus DISMISSES the

claim but WITHOUT PREJUDICE, as this is the first dismissal of this claim. The

Court GRANTS Mitchell leave to file an amended complaint, within twenty-eight

days, addressing the above-identified shortcomings, if he can.

CONCLUSION

Based on the above, the Court GRANTS-IN-PART and DENIES-IN-PART

Defendant McKenzie’s Motion To Dismiss (Doc. 10), and GRANTS-IN-PART and

DENIES-IN-PART the Fujitec Defendants’ Motion to Dismiss (Doc. 11). As a result,

the Court DISMISSES WITH PREJUDICE Counts 1, 5, 6, 7, 8, 9, and 11 to the

extent that those Counts are directed toward McKenzie; DISMISSES WITH

PREJUDICE Counts 5, 6, 8, and 9 to the extent those Counts are directed toward

Krupp; DISMISSES WITH PREJUDICE Count 6 to the extent that this Count is

directed to Fujitec America; DISMISSES WITH PREJUDICE Count 6 to the extent

this Count is directed toward Fujitec Co. Ltd; DISMISSES WITHOUT

PREJUDICE Counts 1, 10, and 12 to the extent that those Counts are directed to

McKenzie; DISMISSES WITHOUT PREJUDICE Counts 1, 5, 8, 10, and 12 to the

extent that those Counts are directed to Fujitec Co. Ltd and Fujitec America; and

DISMISSES WITHOUT PREJUDICE Counts 1,3, 4, 10, and 12 as regarding

Krupp. As to any claim dismissed without prejudice, the Court also GRANTS

Mitchell leave to file an amended complaint within twenty-eight days providing

additional factual support, if he is able, to address the issues specifically identified

above. In doing so, the Court is not granting Mitchell leave to file an amended

complaint more broadly, but only to respond to those specific issues.

SO ORDERED.

February 8, 2021

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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