Bonn v. TOSOH America, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN WALTER BONN,

Plaintiff, :

Case No. 2:23-cv-678

v.

Judge Sarah D. Morrison

Magistrate Judge Kimberly A.

Jolson

TOSOH AMERICA INC. d/b/a

TOSOH SMD INC., :

Defendant.

OPINION AND ORDER

John Walter Bonn filed suit against his former employer, Tosoh SMD, Inc.1

(Compl., ECF No. 3.) Tosoh has moved to dismiss Mr. Bonn’s Complaint. (Mot., ECF

No. 10.) Mr. Bonn responded (ECF No. 11), and Tosoh filed its reply (ECF No. 12).

The Motion is ripe for consideration. Because Mr. Bonn’s Complaint fails to allege

facts necessary to plausibly state a claim for relief, he is ORDERED to file an

amended complaint within fourteen days. Mr. Bonn is CAUTIONED that if he

fails to do so, this Court will sua sponte dismiss his Complaint with prejudice.

1 Mr. Bonn’s Complaint identifies TOSOH America, Inc. dba TOSOH SMD,

Inc. In its Motion to Dismiss, Tosoh SMD, Inc. asserts that “Plaintiff was not

employed by TOSOH America, Inc., which does not do business as TOSOH SMD,

Inc.” (Mot., PAGEID # 40.) Instead, “[h]e was employed by Tosoh SMD, Inc., which

is the proper defendant.” (Id.)

I. BACKGROUND

All well-pleaded factual allegations in a complaint are considered as true for

purposes of a motion to dismiss. See Gavitt v. Born, 835 F.3d 623, 639–40 (6th Cir.

2016). The following summary draws from Mr. Bonn’s Complaint.

Mr. Bonn alleges that, while employed by Tosoh, he was subject to

differential treatment and that he was ultimately terminated “for speech and

activity protected by the [National Labor Relations Act] and the United States

Constitution.” (Compl., PAGEID # 22–23.) He further alleges that Tosoh “maintains

and enforces vague, overbroad policies that chill and restrict employees in their

exercise of protected rights,” and that he was terminated “based on those

suspicious, hidden policies.” (Id., PAGEID # 22.)

Mr. Bonn goes on to describe “harassment” by a co-worker named Mo, which

he believes was based on religious animosity. (Id., PAGEID # 23.) Although Mr.

Bonn reported Mo to HR and his supervisor, Tosoh did not “directly address[] the

problem[.]” (Id.) Mr. Bonn also alleges that he was “[s]et up because of his age and

gender” and was the subject of “character deformation [sic] attacks,” presumably

related to an investigation into his interactions with “a young lady who worked in

the same building as [he] did.” (Id., PAGEID # 25–26.) Finally, Mr. Bonn alleges

that he was terminated on April 12, 2022, with the following statement: “Because

you are who you are, TOSOH doesn’t trust you and is letting you go.” (Id., PAGEID

# 25.)

Mr. Bonn received a right-to-sue letter from the EEOC before filing suit.2

(See ECF No. 1-2.) As damages for Tosoh’s conduct, Mr. Bonn seeks back pay and

front pay, and money damages for defamation and emotional pain and suffering.

(Id., PAGEID # 28.)

II. STANDARD OF REVIEW

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 alteration and 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). The Supreme Court has explained:

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

2 The letter does not indicate the basis for Mr. Bonn’s initial charge, which is

necessary information to determine that administrative remedies have been

exhausted. See Strouss v. Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001)

(“[F]ederal courts do not have subject matter jurisdiction to hear Title VII claims

unless the claimant explicitly files the claim in an EEOC charge or the claim can be

reasonably expected to grow out of the EEOC charge.”).

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Id. (citing Twombly, 550 U.S. at 555.) “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. In reviewing a motion to dismiss, the Court “construe[s] the complaint

in the light most favorable to the plaintiff[.]” DirecTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007).

These standards apply equally when the plaintiff is pro se. Although a pro se

litigant is entitled to a liberal construction of his pleadings and filings, he still must

do more than assert bare legal conclusions, and the “complaint must contain either

direct or inferential allegations respecting all the material elements to sustain a

recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th

Cir. 2005). “While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

III. ANALYSIS

Tosoh describes Mr. Bonn’s Complaint as “freeform.” (Mot., PAGEID # 39.) It

is true, the Complaint does not conform to any familiar format. But a pro se

litigant’s pleadings are to be construed liberally and held to a less stringent

standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972);

Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Court construes Mr. Bonn’s

Complaint as alleging claims for (A) defamation, (B) discrimination based on

religion, sex, age, and disability, and (C) retaliation.

A. Mr. Bonn fails to state a claim for defamation.

To state a claim for defamation under Ohio law, an individual must allege:

(1) that a false statement of fact was made, (2) that the statement was

defamatory, (3) that the statement was published, (4) that the plaintiff

suffered injury as a proximate result of the publication, and (5) that the

defendant acted with the requisite degree of fault in publishing the

statement.

Croce v. New York Times Co., 930 F.3d 787, 792 (6th Cir. 2019) (quoting Am. Chem.

Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012)).

Tosoh argues that Mr. Bonn’s Complaint fails to allege sufficient facts to

establish any of the necessary elements of the claim. (Mot., PAGEID # 49–50.) Mr.

Bonns does not address Tosoh’s argument in his response. (See Resp., generally.)

The Court agrees with Tosoh. The Complaint does not identify the substance of the

allegedly false statements made about him; who made them; to whom they were

made (if anyone); the efforts taken (or not) to determine their truth; or the effect

that they had on Mr. Bonn. Mr. Bonn thus fails to state a claim for defamation.

B. Mr. Bonn fails to state a claim for discrimination.

Mr. Bonn next alleges that he was subject to discrimination in his

employment on several bases (gender and religion, protected under Title VII of the

Civil Rights Act of 1964; age, protected under the Age Discrimination in

Employment Act (“ADEA”); and disability, protected under the Americans with

Disabilities Act (“ADA”)) and under two different theories (disparate treatment and

hostile work environment harassment).

1. Disparate Treatment

Tosoh points out that, to succeed on a claim for disparate treatment based on

indirect evidence, a plaintiff generally must show that (i) he is a member of a

protected group, (ii) he was subject to an adverse employment action, (iii) he was

qualified for the position, and (iv) he was treated less favorably than similarly-

situated employees outside the protected class.3 (Mot., PAGEID # 43–44.) See also

Shivers v. Charter Commc’ns, LLC, 2022 WL 1912860, at *3 (S.D. Ohio June 3,

2022) (Morrison, J.) (applying same general prima facie test to discrimination

claims under Title VII and ADEA) (citations omitted). But this is an evidentiary

standard, not a pleading standard. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–

11 (2002). Instead, a complaint must contain sufficient factual allegations to

support an inference of unlawful discrimination, but it need not establish each

element of the prima facie case. See Masaebi v. Arby’s Corp., Case No. 2:19-cv-5271,

2020 WL 1275724, at *3–4 (S.D. Ohio Mar. 17, 2020) (Sargus, J.).

With respect to the facts that might support such an inference, Mr. Bonn’s

Complaint is vague and conclusory. For example, he fails to allege which protected

group(s) he belongs to, or that he has a real or perceived disability. He also fails to

allege facts supporting his conclusion that he was subject to “differential

treatment.” (Compl., PAGEID # 23.) Differential as compared to whom? And what

relatively-favorable treatment did those other employees receive? In short, the

Complaint fails to state a claim for discrimination on the basis of gender, age, or

disability.

3 The prima facie showing is slightly different for disparate treatment based

on disability. In such claims, a plaintiff must show that (i) he has a disability, (ii) he

is otherwise qualified for the position, with or without reasonable accommodation,

(iii) he suffered an adverse employment decision, (iv) his employer knew or had

reason to know of the disability; and (v) he was replaced or his position remained

open. Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 395 (6th Cir. 2017).

2. Hostile Work Environment / Harassment

As to religious discrimination, the Court interprets Mr. Bonn’s Complaint as

alleging a claim based on a hostile work environment harassment theory. To

succeed on such a claim, a plaintiff must establish that (i) he is a member of a

protected class, (ii) he was subjected to unwelcome harassment, (iii) the harassment

was based on his protected class, (iv) the harassment unreasonably interfered with

his work performance and created a working environment that was intimidating,

hostile, or offensive, and (v) a basis for employer liability exists. Fleenor v. Hewitt

Soap Co., 81 F.3d 48, 49 (6th Cir. 1996), cert. denied, 519 U.S. 863 (1996).

Mr. Bonn has failed to state a hostile work environment claim for the same

reason discussed above: the factual allegations are simply insufficient to state a

plausible claim for relief. For example, what religion is Mr. Bonn? What religion is

Mo? Why did Mr. Bonn conclude that Mo’s misconduct was motivated by religious

animus? And why should Tosoh be held liable for Mo’s misconduct? Without these

or similar facts alleged, the Court must conclude that Mr. Bonn fails to state a

claim.

C. Mr. Bonn fails to state a claim for retaliation.

Finally, to succeed on a claim for retaliation, a plaintiff must demonstrate

that (i) he engaged in protected activity, (ii) the defendant knew of the protected

conduct, (iii) the defendant took adverse action against the plaintiff, and (iv) there

is a causal connection between the protected activity and the employment action.4

4 The Court does not read Mr. Bonn’s Complaint as asserting a retaliation

claim under the ADA.

Fox v. Eagle Distrib. Co., Inc., 510 F.3d 587, 591 (6th Cir. 2007) (establishing the

elements of the claim and explaining that the anti-retaliation provisions of Title VII

and ADEA are “similar in relevant respects”).

The Complaint does not allege sufficient facts for the Court to reasonably

infer that Tosoh retaliated against Mr. Bonn. Among other things, the Court cannot

determine that he engaged in legally protected activity. The only possible protected

conduct alleged is Mr. Bonn’s complaints to HR about Mo—but the fact of a

complaint is the full extent of what is alleged. Without more, the Court cannot even

infer that the complaint is of a type protected by federal law. See, e.g., id., at 591–92

(explaining that conduct is protected only when it “amount[s] to opposition to an

unlawful employment practice”).

The Complaint fails to state a claim for retaliation.

IV. CONCLUSION

Plaintiffs facing a challenge under Rule 12(b)(6) are generally afforded an

opportunity to amend their complaint before the motion is ruled upon, or when the

motion succeeds. Neitzke v. Williams, 490 U.S. 319, 329 (1989); Brown v.

Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011) (citation omitted); see also Fed. R.

Civ. P. 15(a). While granting leave to amend is within a reviewing court’s discretion,

courts should bear in mind that “[t]he rights of pro se litigants require careful

protection where highly technical requirements are involved, especially when

enforcing those requirements might result in a loss of the opportunity to prosecute

or defend a lawsuit on the merits.” Brown, 415 at 616 (quoting Garaux v. Pulley,

739 F.2d 437, 439 (9th Cir. 1984)). Here, Mr. Bonn asserts “there will be no need to

amend the complaint.” (ECF No. 13, PAGEID # 64.) But he also suggested that this

case was filed just in time to preserve his claims. (See ECF No. 1-1, PAGEID # 4;

ECF No. 1-2.) Accordingly, Mr. Bonn may wish to revisit his position on amending

his Complaint after reviewing the Court’s analysis above.

If Mr. Bonn would like to amend his complaint to include the factual

allegations necessary to sustain a claim, he is ORDERED to do so within

fourteen days of the date of this Order. Mr. Bonn is CAUTIONED that if he

chooses not to file an amended complaint within the specified time period, the Court

will sua sponte reconsider this Opinion and Order and dismiss Mr. Bonn’s case with

prejudice for failure to state a claim.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE