Baum v. Intertek Testing Services NA, Inc et al

Filing 17

Opinion and Order. As outlined herein, Defendants' Motion to Dismiss (Related doc # 8 ) is granted in part. Judge Christopher A. Boyko on 12/10/2013. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEFFREY BAUM,

)
)
Plaintiff,
)
)
vs.
)
)
INTERTEK TESTING SERVICES, et al., )
)
Defendants.
)

CASE NO. 1:13CV1347
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court on the Motion (ECF DKT #8) of Defendants,
Intertek Testing Services, NA, Inc. and George Strom (hereinafter “Defendants”), to Dismiss.
Defendants argue that Plaintiff failed to state a claim for which relief can be granted on
Counts One, Two, Three, Four, Five, Six, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen,
Fifteen, Sixteen, Seventeen, and Eighteen. In response, Plaintiff voluntarily withdraws
Counts One, Two, Three, Twelve, Thirteen, Fifteen, Seventeen, and Eighteen, and argues that
the pleadings were sufficient on Counts Four, Five, Six, Nine, Ten, Eleven, Fourteen, and
Sixteen. For the following reasons, Defendants’ Motion to Dismiss is granted in full as to

Counts Four, Five, Six, Nine, Eleven, Fourteen, and Sixteen, and in part as to Count Ten as it
applies to commissions.
I. FACTS AND PROCEDURAL HISTORY
In 1997, Plaintiff was hired by Defendant Intertek, a multinational corporation
specializing in product testing and certification, as a sales representative. From 1998 to 2005,
Plaintiff received positive performance reviews and received several accolades for his good
work.
In 2005, Defendant Strom was a Director of Sales for Intertek. In this position,
Defendant Strom was one of the officers giving performance reviews of sales representatives,
including Plaintiff. While supervising Plaintiff, Defendant Strom allegedly made comments
describing Plaintiff as a “f***king a**hole,” “pain in the a**,” and “piece of s***” and
would allegedly ask other employees “why is [Plaintiff] still here?”
On March 31, 2005, Defendant Strom gave Plaintiff a negative performance review,
criticizing his professionalism, inter-personal skills, and alleged insubordination.
On October 12, 2009 Plaintiff was promoted to National Sales Manager and shortly
after, received a positive review, which resulted in a pay increase. According to Plaintiff,
Defendant Strom then told Plaintiff that he was ineligible for the raise.
In April, 2012, Plaintiff alleges that Defendant Intertek’s Director of Sales, Vince
Reynolds, “promised to [Plaintiff] that he would be justly rewarded” for his recent positive
performance review.
In 2012, Defendant Strom was promoted to a supervisory position over Plaintiff.
Plaintiff alleges that, while in this position, Defendant Strom “unilaterally changed

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[Plaintiff’s] agreed upon Compensation Agreement by altering the internal coding of
[Plaintiff’s] commissions and crediting [Plaintiff’s] accounts to others,” allegedly resulting in
Plaintiff receiving less than his required commissions.
In October 2012, Plaintiff requested time off under the Family Medical Leave Act
(FMLA) because of the birth of his child, but he continued to work during his leave. Plaintiff
also communicated with counsel regarding employment matters. Defendant Intertek
requested that Plaintiff stop copying counsel, but retracted its request when Plaintiff’s counsel
objected.
Also in 2012, Plaintiff alleges that Defendant Strom “establish[ed] sales quotas that
were nearly impossible to attain while shrinking [Plaintiff’s] sales territory, placing [Plaintiff]
on a ninety (90) day performance plan for his failure to reach the unattainable goals set for
him, immediately requiring travel of [Plaintiff] but failing to provide support or
reimbursement for certain expenses and failing to respond to [Plaintiff’s] inquiries and
concerns as to why such action is being taken.” Plaintiff states that “[a]ll of the foregoing
were ratified and/or acquiesced by Intertek through District Sales Manager Stephanie
Barrows.”
II. LAW AND ANALYSIS
A.

Legal Standard

In their 12(b)(6) Motion to Dismiss, Defendants assert that Plaintiff has failed “to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The grounds on which
the Plaintiff pleads his case must be sufficient “to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).

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To survive a motion to dismiss, the complaint “must contain sufficient factual matter,
accepted as true, to state a claim that is ‘plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662 (2009), quoting Twombly, 550 U.S. at 570. A claim is facially plausible when the
plaintiff “pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id., quoting Twombly, 550 U.S. at 556.
Conclusory statements or “a formulaic recitation of the elements of a cause of action will not
do.” Id., quoting Twombly, 550 U.S. at 555.
B.

Counts Four and Five for Negligent Hiring, Retention and Supervision

In Ohio, the elements for claims of negligent hiring, negligent retention, and negligent
supervision are the same. The plaintiff in all three claims must sufficiently plead five
elements: “(1) the existence of an employment relationship; (2) the employee’s incompetence;
(3) the employer’s actual or constructive knowledge of such incompetence; (3) the
employee’s act or omission causing plaintiff’s injuries; and (5) the employer’s negligence in
hiring or retaining the employee was the proximate cause of the plaintiff’s injuries.” Hout v.
City of Mansfield, 550 F. Supp. 2d 701 (N.D. Ohio 2008).
Case law in the Sixth Circuit indicates that in order to sufficiently plead claims of
negligent hiring or supervision, the plaintiff is required to “establish a tort claim against the
individual employee in order to prevail.” Hout, 550 F. Supp. 2d at 745, citing Minnich v.
Cooper Farms, Inc., 39 Fed. Appx. 289 (6th Cir. 2002); see also Hout, 550 F. Supp. 2d at 746
(“Ohio Courts take the view that a plaintiff must be able to establish a tort claim against the
individual employee in order to maintain an action for negligent supervision or retention
against the employer.”).

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Here, Plaintiff has failed to sufficiently plead a tort claim against the individual
employee, Defendant Strom. Plaintiff states that his claims of Tortious Interference with a
Contract, Defamation, and Violation of Public Policy are sufficient to support negligent
retention and supervision claims. However, as discussed below, Plaintiff’s claim for Tortious
Interference with a Contract must be dismissed because it cannot be sustained against an
officer of the corporation; and his claim for Defamation fails because it is based on nonactionable opinion. Additionally, Plaintiff’s claim for Violation of Public Policy has been
brought solely against Defendant Intertek, not the individual employee in question, Defendant
Strom.
Further, when a plaintiff makes a claim for negligent hiring, retention and supervision,
“foreseeability is the test of employer liability.” Hout, 550 F. Supp. 2d at 745, citing Dawson
v. Airtouch Cellular, 42 F. Supp. 2d 767, 772 (S.D. Ohio 1999). When making allegations of
negligent hiring, the issue is whether the employer “knew or should have known of the
employee’s criminal or tortious propensities.” Hout, 550 F. Supp. 2d at 745, citing Dawson,
42 F. Supp. 2d at 773 (dismissing claim where plaintiff failed to allege that the supervisor had
any criminal or tortious propensities).
Plaintiff has failed to sufficiently plead his claim for negligent hiring. He failed to
allege Intertek’s knowledge of any “criminal or tortious propensities” that Defendant Strom
might have. While Plaintiff alleges that Intertek had “actual knowledge of Mr. Strom’s
incompetence in his supervision of Mr. Baum,” incompetence does not rise to the level of
“criminal or tortious propensities.”
Plaintiff has failed to sufficiently plead Counts Four and Five, for Negligent Hiring,

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Retention, and Supervision; and therefore, these claims are dismissed.
C.

Count Six for Tortious Interference with a Contract

In Ohio, when complaining of a tortious interference with contract, a plaintiff must
allege: “(1) the existence of a contract; (2) the wrongdoer’s knowledge of the contract, (3) the
wrongdoer’s intentional procurement of the contract’s breach; (4) the lack of justification; and
(5) damages.” Dorricott v. Fairhill Center for Aging, 2 F. Supp. 2d 982, 989 (N.D. Ohio
1998), citing Kenty v. Transamerica Premium Ins. Co., 72 Ohio St. 415, 419 (1995).
Additionally, a plaintiff must show that the interference was by a third person. “Officers,
directors, and creditors of a corporation have a privilege to interfere with contracts in
furtherance of their legitimate business interests.” Dorricott, 2 F. Supp. 2d at 990, citing
Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988).
In order for an officer of a corporation to be held liable for tortious interference with a
contract, a plaintiff must assert that the officer was acting outside of his capacity as a
corporate officer. Dorricott, 2 F. Supp. 2d at 990.
Plaintiff has failed to show that Strom, as an officer of Intertek, was acting outside of
his capacity as a corporate officer. In fact, the Court notes that in ¶ 34 of the Complaint,
Plaintiff states that “Mr. Strom acted in the course and scope of his duties as Intertek’s agent
and employee.”
Thus, Plaintiff’s claim for tortious interference with a contract is dismissed.
D.

Count Nine for Unjust Enrichment

For an unjust enrichment claim under Ohio law, a plaintiff must prove three things:
“1) plaintiff conferred a benefit on defendant; 2) defendant knew of such benefit; and 3)

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defendant retained the benefit under circumstances where it would be unjust to do so without
payment.” Resource Title Agency, Inc. v. Morreale Real Estate Services, Inc., 314 F. Supp.
2d 763, 771 (N.D. Ohio 2004). “Ohio law generally does not permit recovery under the
theory of unjust enrichment when an express contract covers the same subject.” Id. at 772.
However, where an express contract is in place between the parties, unjust enrichment may
be pled “when the existence of a contract is in dispute” or “where there is evidence of fraud,
bad faith, or illegality.” Id. at 772; see also Eyerman v. Mary Kay Cosmetics, Inc., 967 F.2d
213 (6th Cir. 1992) (denying recovery under theory of unjust enrichment because no
allegation of fraud, bad faith, or illegality in the making of the governing contract).
Here, Plaintiff’s unjust enrichment claim must be dismissed. As stated in the
Complaint at ¶ 3, Plaintiff’s employment was subject to an express contractual agreement
between Plaintiff and Defendant Intertek. Plaintiff has not pled that this contract is in dispute,
nor made any allegation of fraud, bad faith or illegality in the making of the governing
contract. Although, in his Memorandum in Opposition to Defendant’s Motion to Dismiss,
Plaintiff claims that he was actually uncompensated for work, he failed to plead this theory in
his Complaint and has failed to state what work he was uncompensated for. Additionally, his
Breach of Contract claims may allow recovery of any proven uncompensated commissions
under the contract.
Because Plaintiff has failed to state a valid claim for Unjust Enrichment, Count Nine
is dismissed.
E.

Count Ten for Semi-Monthly Payment of Wages under O.R.C. § 4113.15

Under O.R.C. § 4113.15 (D)(1), an employee is entitled to recovery of wages that

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have not been paid within an appropriate amount of time. O.R.C. § 4113.15. It defines an
employee’s wage as being “the net amount of money payable to the employee, including any
guaranteed pay or reimbursement for expenses.” Although the Ohio Supreme Court has not
explicitly determined what payments could be encompassed under the meaning of the statute,
the Ohio Fifth District Court of Appeals has addressed commissions under the statute. In its
Haines & Co. decision, the court stated that “the definition of the word wage as used in
Section 4113.15 does not include commissions, which are not guaranteed pay or
reimbursement for expenses.” Haines & Co. v. Stewart, No. 2000CA00138, 2001 WL
166465, at *3 (Ohio Ct. App. 5th Dist. Feb. 5, 2011).
Further, while the Fifth District affirmed that an employer has no right to withhold
commissions that were earned under the contract and had vested prior to termination, it also
found that O.R.C. § 4113.15 was only applicable to employment situations where the wage
amount is undisputed. Haines & Co., 2001 WL 166465, at *2-3. The Court stated that
O.R.C. § 4113.15 was not applicable “because a legitimate dispute exists between the parties
as to the payment of the accrued commissions at termination.” Haines & Co., 2001 WL
166465, at *3.
Here, O.R.C. § 4113.15 does not apply to Plaintiff’s claim for commissions.
Commissions are not encompassed by the term “wages,” as defined by the statute, because
they are not guaranteed pay or reimbursement for expenses. Even if this Court determines
that commissions fall under the definition of “wage” under the statute, the Complaint
indicates that a dispute exists between the parties as to their existence. Further, even if this
Court were to hold that commissions could be considered wages, Plaintiff has alleged within

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his Complaint that these amounts have been “manipulated” and “changed.” A legitimate
dispute exists as to the amount of commissions due to Plaintiff, making O.R.C. § 4113.15
inapplicable.
Therefore, Plaintiff’s claim under O.R.C. § 4113.15 is dismissed to the extent that it
seeks damages for the untimely payment of commissions.
F.

Count Eleven for Retaliation

Plaintiff has failed to sufficiently plead a claim for Retaliation. Under the
Twombly/Iqbal pleading standard, Plaintiff’s Complaint must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. The claim must be more than conclusory or
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678. “‘Naked assertions’ devoid of ‘further factual enhancement’” are insufficient to
support a claim in a complaint. Id., quoting Twombly, 550 U.S. at 557. The claim itself must
be “plausible on its face.” Twombly, 550 U.S. at 570.
Merely stating that Plaintiff “has been and continues to be retaliated against” is a
“naked assertion” and insufficient to plead that retaliatory action has been taken against
Plaintiff.
As such, Plaintiff’s Retaliation claim fails to meet the pleading standard required
under Twombly and Iqbal, and must be dismissed.
- FMLA Retaliation
Moreover, Plaintiff has failed to sufficiently plead a claim of Retaliation under the
Family Medical Leave Act (FMLA). Plaintiff first mentions this theory in his Opposition to
Defendant’s Motion to Dismiss. As such, a reasonable defendant would not read the

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Complaint to understand that it encompassed a claim for Retaliation under the FMLA.
Additionally, Defendants correctly state that even if the claim of retaliation under the
FMLA were sufficiently pled, Plaintiff has not alleged a prima facie case of Retaliation under
the FMLA. To establish a prima facie case of Retaliation under the FMLA, Plaintiff must
prove: “(1) they were engaged in a statutorily protected activity; (2) Defendant knew they
were exercising their FMLA rights; (3) they suffered an adverse employment action; and (4) a
causal connection existed between the retaliatory action and the protected activity.” Hopkins
v. Chartrand, No. 1:11 CV 2558, 2013 WL 3787596, at *8 (N.D. Ohio July 18, 2013), citing
Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012).
Here, Plaintiff fails to allege that any retaliatory action has taken place. Plaintiff states
that his placement on a “ninety (90) day performance improvement plan” was an adverse
employment action subject to his FMLA leave. However, Defendant correctly asserts that
merely being placed on a performance improvement plan is not an adverse employment
action within the meaning of the FMLA. See Novotny v. Reed Elsevier, 291 Fed. Appx. 698,
703 (6th Cir. 2008) (stating that the placement of the plaintiff “on a plan to improve her work
performance [does] not qualify as a materially adverse employment decision[]”); see also
Agnew v. BASF Corp., 286 F.3d 307 (6th Cir. 2002) (“[W]e have held that criticism in
performance reviews and institution of performance improvement plans, alone, do not
constitute objectively intolerable conditions.”) .
Because Plaintiff has failed to sufficiently state a claim for Retaliation, Count Eleven
is dismissed.

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G.

Count Fourteen for Violation of Public Policy

Plaintiff’s Count Fourteen, a claim for Violation of Public Policy, is duplicative of
Plaintiff’s Count Eleven claim for Retaliation.
Further, a public policy violation need not be recognized where “there already exists a
statutory remedy that adequately protects society’s interests.” Wiles v. Medina Auto Parts, 96
Ohio St. 3d 240, 244 (2002) (finding that a common-law action for wrongful discharge should
not be recognized where an adequate statutory remedy exists). The existence of a statutory
remedy gives “the aggrieved employee an alternate means of vindicating his or her statutory
rights and thereby discouraging an employer from engaging in the unlawful conduct.” Id.
Not only is Plaintiff essentially re-alleging the same cause of action as Count Eleven, but he
specifically alleges, in his own Complaint under Count Fourteen, violations of “Mr. Baum’s
statutory rights.” (Emphasis added).
Because statutory remedies exist for the alleged unlawful behavior, Count Fourteen
for Violation of Public Policy is dismissed.
H.

Count Sixteen for Defamation

For an Ohio Defamation claim, Plaintiff must allege: “(a) a false and defamatory
statement concerning another; (b) an unprivileged publication; (c) fault amounting to at least
negligence; (d) either actionability of the statement irrespective of the special harm or the
existence of special harm caused by the publication.” Harris v. Bornhorst, 513 F.3d 503, 522
(6th Cir. 2008), citing Akron-Canton Waste Oil, Inc. v. Safety Kleen Oil Serv., Inc., 81 Ohio
App. 3d 591, 611 (9th Dist. 1992). “Expressions of opinion are protected under the Ohio
Constitution and therefore cannot constitute defamation under state law.” Harris, 513 F.3d at

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522, citing Vail v. Plain Dealer Publ’g Co., 72 Ohio St. 3d 279 (1995).
To determine whether the statement is opinion, and therefore not actionable as
defamation, Ohio courts apply the “totality of the circumstances test.” Harris, 513 F.3d at
522, citing Vail, 72 Ohio St. at 185. The test calls on the Court to consider “the specific
language used, whether the statement is verifiable, the general context of the statement, and
finally, the broader context in which the statement appeared.” Harris, 513 F.3d at 522, citing
Vail, 72 Ohio St. at 185. A “mixed expression” of opinion, one that implies an assertion of
objective fact, “may . . . be the basis for an action for defamation, since it implies an
allegation of undisclosed defamatory facts as the basis for the opinion.” Harris, 513 F.3d at
522, citing Falls v. Sporting News Pub. Co., 834 F.2d 611, 615 (6th Cir. 1987).
Plaintiff bases his claim of Defamation on statements that are clearly opinion. The
language allegedly used by Mr. Strom cannot reasonably be considered statements of fact.
The alleged descriptions of Plaintiff, such as “f***ing a**hole,” “pain in the a**,” and “piece
of s***” are clearly statements of opinion and could not reasonably be thought to be literal.
As the Sixth Circuit stated in Greenhalgh v. Casey, “[w]hile the term [a**hole] may be
considered crude or uncouth, it cannot be considered slanderous. . . . As a matter of law,
referring to plaintiff as an ‘[a**hole]’ is not actionable; it simply is, as the district court
concluded, ‘rhetorical hyperbole’ [which could not be reasonably interpreted to state an actual
fact].” Greenhalgh v. Casey, No. 94- 3824, 1995 WL 570908, *2 (6th Cir. Sept 27, 1995).
Further, as pointed out by Defendants, “[u]nder Ohio law, ‘[a]n action for libel [or]
slander . . . shall be commenced one year after the cause of action accrued . . . .” Friedler v.
Equitable Life Assur. Soc. of U.S., 86 Fed. App’x. 50, 53 (6th Cir. 2003), citing O.R.C.

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§2305.11(A). “[T]he statute of limitations begins to run when the allegedly defamatory
words are first spoken or published regardless of the aggrieved party’s knowledge of them.”
Friedler, 86 Fed. App’x. at 53, citing Sabouri v. Ohio Dep’t of Job & Family Servs., 145
Ohio App. 3d 651, 655 (10th Dist. 2001). This Complaint was filed in 2013, more than seven
years after the allegedly offending performance reviews were made. As such, claims based
on these statements are time-barred.
Because the alleged statements are non-actionable opinion and are time-barred, Count
Sixteen for Defamation is dismissed.
III. CONCLUSION
For these reasons, Defendant’s Motion (ECF DKT #8) to Dismiss is granted as to
Counts Four, Five, Six, Nine, Ten (as it applies to commissions), Eleven, Fourteen, and
Sixteen. Counts Seven, Eight and Count Ten (in part) remain pending before the Court for
further proceedings.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: December 10, 2013

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