The opinion
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 first filed his complaint on February 16, 2023. (ECF No. 1-
1.) Soon thereafter, Tosoh SMD, Inc. moved to dismiss. (ECF No. 10.) In and
October11, 2023 Opinion and Order, the Court concluded that Mr. Bonn failed to
allege facts stating a plausible claim for relief. (Oct. 11 Order, ECF No. 14.) Instead
of dismissing the case outright, the Court granted Mr. Bonn fourteen days to amend
his complaint. (Id.) When an amended complaint was not filed by the deadline, the
Court granted Tosoh’s motion to dismiss. (ECF No. 15.) Shortly after the Court’s
dismissal, Mr. Bonn did file an Amended Complaint. (Am. Compl., ECF No. 17.)
Because it prefers to decide cases on the merits, the Court accepted the late-filed
pleading and re-opened the case. (ECF No. 20.)
Tosoh now moves to dismiss the Amended Complaint. (Mot., ECF No. 23.)
Mr. Bonn responded in opposition (Resp., ECF No. 24), and Tosoh replied (Reply,
ECF No. 25). For the reasons below, Tosoh’s Motion is GRANTED.
I. FACTUAL BACKGROUND
Mr. Bonn provides expanded factual allegations in his Amended Complaint.
For purposes of the Motion to Dismiss, all well-pleaded factual allegations are taken
as true. See Gavitt v. Born, 835 F.3d 623, 639–40 (6th Cir. 2016). The following
summary draws from the allegations in the Amended Complaint.
Mr. Bonn was a machinist at Tosoh for two years, where he worked the
weekend shift. Much of the Amended Complaint focuses on his friendship with a co-
worker named Katelyn Simmons. Although Mr. Bonn refers to himself as a “results
oriented old man,” (see Am. Compl., PAGEID # 86) he does not state his age. He
does allege that Ms. Simmons was eighteen when their friendship began. When
someone complained to Tosoh HR about Mr. Bonn’s interactions with Ms. Simmons,
he was instructed not “to talk to Katelyn, acknowledge here or even say hi to
Katelyn.” (Id., PAGEID # 81.)
During the same time period, a co-worker named Momodo Faye told Mr.
Bonn that he “despised older men” and that he “didn’t like God either.” (Id.) Mr.
Bonn “mentioned” Mr. Faye’s conduct to Human Resources. (Id.) He informed HR
that Mr. Faye was working against him and getting other employees to give him
“the evil eye.” (Id.) Mr. Bonn also reported his concerns about Mr. Faye’s
harassment to the CEO of Tosoh America. But Tosoh continued to assign Mr. Bonn
and Mr. Faye to work in close proximity.
On February 12 and 13, 2022, Mr. Bonn left work early because he was afraid
of Mr. Faye. HR suggested that he seek counseling for those missed days.
One month later, a co-worker reported to HR that Mr. Bonn was again
talking to Ms. Simmons. Mr. Bonn was ordered off the premises pending an
investigation. After thirty days on unpaid leave, Mr. Bonn was terminated on April
12, 2022. In Mr. Bonn’s view, Tosoh had “obviously planned” to terminate him all
along. (Id., PAGEID # 91.)
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
include more than labels, conclusions, and formulaic recitations of the elements of a
cause of action. Id. (citing Twombly, 550 U.S. at 555.) 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, 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).
III. ANALYSIS
The legal basis for Mr. Bonn’s claims is still not entirely clear. Tosoh believes
(and Mr. Bonn does not dispute) that the Amended Complaint asserts claims for
defamation, discrimination and hostile work environment based on religion, sex,
age, and/or disability, and retaliation. (Mot., PAGEID # 105; see also Resp.) The
Court set out the elements of these claims in the October 11, 2023 Opinion and
Order; there is no need to repeat them here.
A. Defamation
Mr. Bonn again fails to state a claim for defamation. The Amended
Complaint does not identify the false or defamatory statement(s) that Mr. Bonn
believes were made about him; who made them; to whom they were made; the
efforts taken (or not) to determine their truth; or the effect they had on him.
Tosoh’s motion to dismiss is GRANTED to the extent Mr. Bonn asserts a
defamation claim.
B. Employment Discrimination – Disparate Treatment
The Amended Complaint superficially alleges that Mr. Bonn was subject to
disparate treatment based on his religion, sex, and age. (See Am. Compl., PAGEID
# 92.) But it fails to allege any facts demonstrating that he was treated less
favorably than similarly situated employees of a different religion, sex, or age—Mr.
Bonn neither identifies Tosoh employees who were treated better, nor describes how
they were treated better.
Thus, Tosoh’s motion to dismiss is GRANTED to the extent Mr. Bonn asserts
a claim for disparate treatment.
C. Employment Discrimination – Hostile Work Environment
Mr. Bonn also failed to cure the deficiencies in his hostile work environment
claim. (See Oct. 11 Order, PAGEID # 71.) The Amended Complaint does not allege
facts supporting an inference that Mr. Bonn was subjected to severe or pervasive
harassment—let alone that such harassment was because of a protected
characteristic.
Tosoh’s motion to dismiss is also GRANTED to the extent Mr. Bonn brings a
hostile work environment claim.
D. Retaliation
Finally, Mr. Bonn does not state a claim for retaliation. Although the
Amended Complaint provides more information on Mr. Bonn’s HR complaints about
Mr. Faye, it still fails to allege facts allowing an inference that the complaints
opposed an unlawful employment practice.
Tosoh’s motion to dismiss is GRANTED to the extent Mr. Bonn asserts a
retaliation claim.
IV. LEAVE TO AMEND
The Sixth Circuit has recognized that “when a motion to dismiss a complaint
is granted, courts typically permit the losing party leave to amend.” Rashada v.
Flegel, 23-1674, 2024 WL 1367436, at *4 (6th Cir. Apr. 1, 2024) (quoting PR
Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004), abrogated on other
grounds by Frank v. Dana Corp., 646 F.3d 954, 961 (6th Cir. 2011)). Even still,
“whether to allow leave to amend is a decision within the discretion of the district
court.” Brown v. Matauszak, 415 F. App’x 608, 616 (6th Cir. 2011). A court does not
generally abuse its discretion by “failing to grant a party leave to amend where such
leave is not sought.” Id. Mr. Bonn has already been granted, and taken advantage
of, leave to amend his complaint against Tosoh. When that leave was granted, Mr.
Bonn was advised of the requirements of Rule 8 and of the elements of his
purported claims. He had ample opportunity to sufficiently allege those claims. He
does not seek further leave to amend, and the Court is disinclined to allow it.
V. CONCLUSION
Tosoh’s Motion to Dismiss (ECF No. 23) is GRANTED. Mr. Bonn’s claims are
DISMISSED with prejudice. The Clerk is DIRECTED to TERMINATE this
case.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE