Thompson v. AK Steel Corporation et al
MEMORANDUM OPINION & ORDER, granting 4 MOTION to Dismiss for failure to state a claim by AK Steel Corporation 3 MOTION to Dismiss for failure to state a claim filed by Joseph Charles., matter be dismissed with prejudice Case Terminated.. Signed by Judge Henry R. Wilhoit, Jr on 11/30/15.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 15-41-HRW
SUSAN E. THOMPSON,
MEMORANDUM OPINION AND ORDER
AK STEEL CORPORATION
This matter is before the Court upon Joseph Charles' Motion to Dismiss [Docket No. 3)
AK Steel Corporation's Motion to Dismiss [Docket No.4). The motions have been fully briefed
by the patties [Docket Nos. 5, 6 and 7). For the reasons set forth herein, the Comi finds that the
Complaint fails to state a claim upon which relief can be granted and, as such, this matter will be
This action arises from the termination of Plaintiff Susan Thompson's employment with
AK Steel Corporation ("AK Steel") in June 2013. Specifically, she alleges that she was
suspended in May, 2014, "pending investigation," for shutting off a water valve pump "that had
not been used in years."
2013 for poor work performance.
10). Plaintiff states that she was then terminated in June
13). She claims that Joseph Charles, an AK Steel
supervisor, and Jeremy Smith, another manager, "did not want Plaintiff in that position and had
indicated so in front of another AK Steel employee."
11). Plaintiff alleges that the
company had written her up previously on "a few occasions," that Charles "targeted" her
employment, and that Defendants' reason for termination "was a mere pretext for their disparate
treatment of Plaintiff.
14-15]. She asse1is that Charles "sought to remove her
based on her gender from the position."
16]. Based on these allegations, Plaintiff
asserts a claim for gender discrimination under Kentucky's Civil Rights Act, KRS Chapter 344
(the "KCRA"). The Complaint also contains a reference to intentional infliction of emotional
distress in the "Wherefore" clause.
Defendants AK Steel and Charles seek dismissal of all claims pursuant to
Fed.R.Civ.Proc. 12(b)(6). They argue that the Complaint does not asse1i factual allegatrions
amounting to a claim of gender discrimination or intentional infliction of emotional distress
against either Defendant. The Court agrees.
Dismissal of a complaint is warranted under Fed.R.Civ.P. 12(b)(6) if it fails to state a
claim upon which relief can be granted. With respect to a motion to dismiss under Fed.R.Civ.P.
12(b)(6), the Sixth Circuit Court of Appeals explained in Estate ofEzra G. Smith v. United
States, 509 Fed.Appx. 436 (6th Cir. 2012) that:
[t]he Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) that to survive a motion to dismiss under Rule 12(b)(6) a
complaint must contain (1) enough facts to state a claim to relief that
is plausible; (2) more than a formulaic recitation of a cause of actions'
elements; and (3) allegations that suggest a right to relief above a
speculative level. (internal citation omitted) .. .A claim has facial
plausibility when the plaintiff pleads factual content that allows the
comi to draw the reasonable inference that the defendant is liable for
the misconduct alleged. (internal citation omitted) ... For a complaint
to survive a motion to dismiss, the non-conclusory factual content and
the reasonable inferences from that content, must be plausibly
suggestive of a claim entitling a plaintiff to relief. (internal citation
omitted) Where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged--but it has not show[n]--that the pleader is entitled to relief.
Estate of Ezra G. Smith, 509 Fed.Appx. at 439.
"Conclusory assertions, e.g., that...[the] defendants engaged in 'outrageous' and
'unlawful' behavior... are insufficient to state a claim that is plausible on its face." Ogle v.
Columbia Gas Transmission, LLC, 513 Fed.Appx. 520, 522-523 (6th Cir. 2013). The "complaint
must contain either direct or inferential allegations respecting all material elements to sustain a
recovery under some viable legal theory." Bishop v. Lucent Technologies, h1c.,520 F.3d 516, 519
(6th Cir. 2008) (internal citation omitted). As the Sixth Circuit stated in Bishop:
[c]onclusory allegations or legal conclusions masquerading as factual
allegations will not suffice. Even under Rule 12(b)(6), a complaint
containing a statement of facts that merely creates a suspicion of a
legally cognizable right of action is insufficient. (internal citations
omitted) The factual allegations must be enough to raise a right to
relief above the speculative level; they must state a claim to relief that
is plausible on its face.
Bishop, 520 F.3d at 519 (internal citations omitted) (emphasis original). "At the very least, trial
and appellate courts should not have to guess at the nature of the claim asserted." Kaftle v.
Lemer, Sampson & Rothjilss, 161 Fed.Appx. 487, 491 (6th Cir. 2005). See also
Scheid v. Fanny Farmer Candy Shops, h1c., 859 F.2d 434 (6th Cir. 1988)(holding that "more
than bare assertions oflegal conclusions is ordinarily required to satisfy federal notice pleading
The Complaint fails to state a claim upon which relief can be granted as to Joseph
In her response to the Defendants' dispositive motions, Plaintiff concedes that she cannot
maintain a claim of discrimination against Charles. She contends, however, that dismissal of the
intentional infliction of emotional distress claim against him would be "premature" as no
discovety has been conducted.
It would be appear that Plaintiff misconstrues the nature of Rule 12(b)(6). The Rule
contemplates a pre-discovery examination of the specific allegations in the Complaint and allows
a defendant to test whether a plaintiff is entitled to relief if everything alleged in the complaint is
accepted as true, not whether Plaintiff has gamered enough evidence to present a prima facie
To prove intentional infliction of emotional distress a plaintiff must demonstrate that the
defendant's conduct was "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." Human a ofKentucky, Inc. v. Seitz, 796 S. W.2d 1, 4 (Ky. 1990).
Conduct must be extremely egregious to support the claim. It is not enough "that the defendant
has acted with an intent which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by "malice," or a degree of
aggravation which would entitle the plaintiff to punitive damages for another toti." Humana of
Kentucky, Inc. v. Seitz, 796 S. W.2d at 4. If conduct is not extremely egregious, the claim must be
dismissed as a matter oflaw.
Plaintiff has not alleged any specific facts to support a claim for intentional infliction of
emotional distress. There are no allegations of any specific conduct by Charles or any other
defendant that could be construed as "outrageous" under Kentucky's high standard. Plaintiffs
only allegations specific to Charles are that he did not want her in her position, that he "targeted"
her, and that he made a statement that "the war is on."
11, 15]. There is no
element of outrageousness in any of these allegations.
Moreover, the Complaint does not include a specific count or explicit assertion of
intentional infliction of emotional distress. Rather, there is a passing reference to the tort in
"Wherefore" clause of the Complaint. This type of vague yet all encompassing assettion does
not pass Rule 12(b)(6) muster.
As intentional infliction of emotion distress is the only claim Plaintiff asserts against
Charles, she has failed to state a claim for relief against him.
The Complaint fails to state a claim upon which relief can be gt·anted as to AK Steel.
In her response to the Defendants' dispositive motions, Plaintiff concedes that her only
claim against AK Steel is that of gender discrimination.
In Count I, Plaintiff alleges gender discrimination under the KCRA, which prohibits an
employer from discharging an individual because of the individual's gender. KRS 344.040. The
KCRA mirrors Title VII of the Civil Rights Act of 1964 and is interpreted consistently with
federal law. Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000); McBrearty v.
Kentucky Community and Technical College System, 262 S.W.3d 205,214 (Ky. App. 2008). To
succeed on a gender discrimination claim, a plaintiff must prove that she would not have been
terminated "but for" her gender. Simon v. City of Youngstown, 73 F.3d 68, 70 (6th Cir. 1996).
Plaintiffs Complaint does not allege facts that create a reasonable inference of gender
discrimination. Plaintiff alleges that she was suspended, pending investigation, for shutting off a
water valve pump that had not been used in years, and that she was later terminated for poor
10, 13]. She believes that Charles and another manager did
not want her in that position and that Charles "targeted" her and made a statement that "the war
15]. Plaintiff admits that the company had written her up previously on "a
few occasions," but that Defendants' reason for termination "was a mere pretext for their
disparate treatment of Plaintiff."
14-15]. She fails, however, to identify or
describe the nature of this "disparate" treatment or offer any factual allegations to explain why
her managers did not want her in the position, targeted her, or why she was terminated. Indeed,
Plaintiff does not allege that her discipline was unwarranted or unjustified. Construing all of
these allegations liberally in favor of Plaintiff does not create any inference of gender
The are only two instances in the Complaint that gender discrimination is mentioned: In
paragraph 16, Plaintiff alleges, that "Charles sought to remove her based upon her gender from
16]. In paragraph 20, she alleges that Charles, "through his conduct
and actions in his capacity as Shipping Foreman ... constituted gender discrimination thereby
intentionally and maliciously violating Kentucky law as set forth in KRS 344, et seq."
20]. These allegations are unsupported by any pleading of fact. To quote Bishop,
a "legal conclusion masquerading as a factual allegation" will not suffice.
The complaint fails to satisfY all tluee elements of the Twombly test. The complaint fails
to satisfY the first prong of the Twombly test because it does not contain any facts which state a
claim to relief that is plausible on its face. The complaint is barren of any "facts" to support the
claim of gender discrimination or intentional infliction of emotional distress. Under the second
prong of the Twombly test, the complaint does not contain a recitation of the elements of a cause
of action. Indeed, the complaint does not even contain a "formulaic recitation" of the elements of
a cause of action. The complaint also fails the third prong of the Twombly test because it does not
suggest a right to relief that rises above speculation. The complaint merely asserts that
Defendants' conduct constituted gender discrimination and the Comi is left to speculate as to
what that conclusory allegation means.
Accordingly, IT IS HEREBY ORDERED Joseph Charles' Motion to Dismiss [Docket
No.3] AK Steel Corporation's Motion to Dismiss [Docket No.4] be SUSTAINED and this
matter be DISMISSED WITH PREJUDICE.
This 30'h day of November, 2015.
Henrv R. Wi!hnft, Jr.
United States llletrlct Judge
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