McIntosh v. Greater Cleveland Regional Transit Authority
Opinion and Order. Defendant's Motion to Dismiss Plaintiff's Complaint, in Part (Related doc # 5 ) is granted. Judge Christopher A. Boyko on 10/12/2016.(H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
GREATER CLEVELAND REGIONAL )
CASE NO. 1:16CV1680
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant Greater Cleveland Regional Transit
Authority’s (“RTA”) Motion to Dismiss Plaintiff’s Complaint, in Part. (ECF # 8). For the
following reasons, the Court grants Defendant’s Motion.
According to Plaintiff’s Complaint, Plaintiff Bryan McIntosh (“McIntosh”) was hired
by RTA as a Quality Assurance Associate in August of 2014. McIntosh is an AfricanAmerican male and a Muslim. In March of 2015, McIntosh was on a business trip with his
direct supervisor, Frank Campbell when Campbell allegedly made remarks in McIntosh’s
presence disparaging Muslims. According to McIntosh, Campbell stated that the “Quran is
going to replace the Bible” and that “Muslims are taking over the world and they should all
just be nuked and wiped out.” In April of 2015, McIntosh filed a Complaint with the EEOC
alleging that Campbell harassed and discriminated against McIntosh based on McIntosh’s
religion. McIntosh subsequently amended his EEOC Complaint to add a claim of race
discrimination. Upon being notified of McIntosh’s EEOC Complaint, RTA suspended
McIntosh based on an unsubstantiated charge and set a pre-termination hearing.
had the charge dismissed, returned to work and subsequently filed a retaliation claim with the
EEOC against RTA. RTA placed McIntosh on decision-making leave which McIntosh
contends was the equivalent of a final written warning. McIntosh alleges he had no prior
disciplinary actions that would justify such disciplinary action.
Thereafter, Mcintosh requested a transfer but was denied. As part of his job duties,
McIntosh was scheduled to go to California to inspect buses that RTA intended to purchase.
After denying his transfer, McIntosh contends RTA further retaliated against him by
cancelling his California trips, sending three other Quality Assurance representatives to
California and placing McIntosh on lower valued work. McIntosh contends a Caucasian
employee refused to do a specs review job but was not disciplined. Instead, RTA made
McIntosh do the job the Caucasian employee refused to do. In September 2015, after another
suspension, McIntosh’s employment with RTA was terminated.
According to RTA, McIntosh’s Complaint fails to state a claim for race discrimination
under both federal and Ohio law. McIntosh’s Complaint alleges no facts that would make his
race discrimination claims plausible. McIntosh does not claim a hostile work environment
due to his race. Instead, he alleges only one single incident wherein a Caucasian employee
was not disciplined for refusing to do a spec review while McIntosh was required to do it.
The Complaint does not allege any discipline arising out of this incident and McIntosh does
not allege his termination was the result of this incident. Furthermore, RTA contends that
having to perform a single, additional routine task of his job duties does not constitute an
adverse employment action because it did not affect his salary, benefits or work hours.
Because the standard for race discrimination is the same under Title VII and Ohio law, RTA
contends McIntosh’s failure to state a claim under one theory is fatal to both.
RTA also moves to dismiss McIntosh’s claim for Intentional Infliction of Emotional
Distress (“IIED”) because in the absence of something more, allegations of employment
discrimination alone cannot support a claim for IIED. In the absence RTA’s outrageous
conduct, McIntosh fails to allege sufficient facts to make his IIED claim plausible.
Lastly, RTA moves to dismiss McIntosh’s claim for punitive damages under Title VII
or O.R.C. 4112 because the statutes exclude punitive damages against political subdivisions.
Furthermore, RTA contends McIntosh cannot pursue punitive damages against RTA under
common law because a statute must specifically authorize punitive damages against a
political subdivision and common law does not. Because punitive damages are not permitted
against RTA, neither can McIntosh pursue attorney fees.
McIntosh opposes RTA’s Motion, contending that his Complaint satisfies the notice
pleading requirements under the Federal Rules of Civil Procedure. McIntosh alleges each of
the elements of a race discrimination claim under Title VII and alleges the same conduct that
supports his religious discrimination claim supports his race discrimination claim. McIntosh
relies heavily on the Supreme Court decision in Swierkiewicz v. Sorema, N.A. 534 U.S. 506
(2002), wherein the Court held that “employment discrimination complaint need not include
such facts and instead must contain only a short and plain statement of the claim showing that
the pleader is entitled to relief.”
McIntosh further alleges his allegations support an IIED claim. The insults to his
religion, the retaliations and termination all support a claim of outrageous conduct by his
McIntosh concedes he cannot proceed with his claim for punitive damages under
federal and Ohio law and cannot recover his attorney fees on his state law claims.
McIntosh asks alternatively that the Court allow him to amend his Complaint should
the Court find any of his claims fails to state a claim upon which relief may be granted.
LAW AND ANALYSIS
Standard of Review
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept
as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S.
89, 93-94 (2007). The court need not, however, accept conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” As the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S.
Ct. 1955 [(2007)], the pleading standard Rule 8 announces does not require
“detailed factual allegations,” but it demands more than an unadorned,
the-Defendant-unlawfully-harmed-me accusation. Id. at 555. A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at
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.”
Id. at 570. 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. Id. at 556. 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. Id. 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.’” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal “obliges
a pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.” Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541 (6th Cir. 2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)).
That is, “Iqbal interpreted Twombly to require more concrete allegations only in those
instances in which the complaint, on its face, does not otherwise set forth a plausible claim for
relief.” Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
McIntosh concedes that he cannot maintain his punitive damage claims and his state
law claim for attorney fees, therefore, the Court grants RTA’s Motion to Dismiss on these
prayers for relief as they are unopposed and waived.
The Court further grants RTA’s Motion to Dismiss McIntosh’s race discrimination
claims under federal and Ohio law as McIntosh has failed to plead sufficient facts making his
race discrimination claims plausible. McIntosh fails to allege any facts of direct race
discrimination. His Complaint fails to allege any statements from his employer or supervisor
indicating any racial animus. He fails to allege any facts demonstrating that RTA treated
African-American employees differently than non-protected class employees.
A fair reading of the Complaint produces no factual allegation of RTA’s
discriminatory animus against African-American employees. The only factual, nonconclusory allegation in the Complaint that hints at a racial animus is McIntosh’s allegation
that “Dan Kirk, who is Caucasian, refused to do a specs review job and was not disciplined.
Instead, RTA made McIntosh do the job that Kirk refused to do.” However, as RTA points
out, this allegation does not say that McIntosh was threatened with discipline if he similarly
refused. In fact, it doesn’t allege McIntosh refused to do the job. McIntosh’s Opposition
relies on the Swierkiewicz v. Sorema, N.A. Supreme Court decision but that opinion predates
the Twombly/Iqbal decisions which require that claims include sufficient facts in order to state
claims that are plausible on their face. Because McIntosh’s race discrimination claims lack
any facts rendering them plausible, dismissal is warranted.
Therefore, the Court grants RTA’s Motion on McIntosh’s claims of discrimination
based on race under federal and Ohio law and dismisses these claims without prejudice.
Similarly, the Court finds McIntosh’s IIED claim must be dismissed as well. Under
Ohio law, a Plaintiff alleging an Intentional Infliction of Emotional Distress claim must prove
the following elements:
(1) the defendant intended to cause emotional distress or knew or should have
known that its conduct would result in serious emotional distress to the
(2) defendant's conduct was outrageous and extreme and beyond all possible
bounds of decency and was such that it can be considered as utterly intolerable
in a civilized community;
(3) defendant's conduct was the proximate cause of plaintiff's psychic injury;
(4) plaintiff's emotional distress was serious and of such a nature that no
reasonable person could be expected to endure it.
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir.2008) (quoting
Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557, 698 N.E.2d 503, 506
To state a claim for IIED, McIntosh must show that RTA’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.”
Long v. Ford Motor Co., 193 Fed.Appx. 497, 503 (6th Cir.2006) (quoting Yeager v. Local
Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 453
N.E.2d 666, 671 (1983) ( overruled on other grounds )). “[T]o say that Ohio courts narrowly
define ‘extreme and outrageous' conduct would be something of an understatement.” Baab v.
AMR Servs. Corp., 811 F.Supp. 1246, 1269 (N.D.Ohio 1993). “Serious” emotional distress
must be “severe and debilitating.” Kovac v. Superior Dairy, Inc., 930 F.Supp.2d 857, 870
(N.D. Ohio 2013) quoting Paugh v. Hanks, 6 Ohio St.3d 72 (1983)).
The Supreme Court of Ohio, in Yeager, 6 Ohio St.3d at 374-375, described what
constitutes extreme and outrageous conduct: “It has not been 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 tort. * * *
Generally, the case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim,
‘Outrageous!’” “As a matter of law, the conduct must be more than mere ‘insults, indignities,
threats, annoyances, petty aggressions, or other trivialities.’ ” Mason, v. United States Fid. &
Guar., Co., 69 Ohio App.3d 309, 317, (Ohio App. 1990) quoting 1 Restatement of the Law
2d, Torts (1965) 73, Section 46, comment d.
Generally, termination of employment will not support an IIED claim even if the
termination was for impermissible reasons. See Godfredson v. Hess & Clark, Inc., 173 F.3d
365, 376 (6th Cir. 1999) (“But an employee's termination, even if based upon discrimination,
does not rise to the level of “extreme and outrageous conduct” without proof of something
more. If such were not true, then every discrimination claim would simultaneously become a
cause of action for the intentional infliction of emotional distress.”
In Ohio, threats of physical violence by a co-worker may arguably support a cause of
action for IIED. McNeil v. Case W. Res. Univ. 105 Ohio App.3d 588, 594 (Ohio App. 8th
Dist.,1995) (“ ...the allegation that a co-worker physically threatened McNeil, arguably rises
to the level of outrageous behavior sufficient for a finding of intentional infliction of
distress.”) However, the Court finds no caselaw supporting an IIED claim based on where a
supervisor’s statements did not indicate a direct or present threat to the employee.
Furthermore, while this Court is obligated to construe all factual inferences in favor of
Plaintiff, it must also be cognizant that “Ohio courts define extreme and outrageous conduct
exceedingly narrow.” Wolfe v. Thermo Fisher Scientific, Inc. 2009 WL 1255023, *2
In light of Ohio’s narrow definition of extreme and outrageous conduct, the Court
finds McIntosh’s Complaint does not cite sufficient facts demonstrating a plausible claim for
While Campbell’s purported statement that Muslims “should all just be nuked and wiped out”
is repugnant, it does not meet the narrow definition as established by Ohio law. This is true
especially in light of what other courts have found to be conduct not rising to extreme and
outrageous. See Wolfe, *2 (S.D.Ohio,2009) (“Plaintiff alleged she was ‘falsely imprisoned
Plaintiff for four hours without food or water while they interrogated, intimidated, harassed
and embarrassed her.’ These allegations insufficient to state a claim for IIED under Ohio
law.”) Mullholand v. Harris Corp., 72 F.3d 130 (Table), 1995 WL 730466 *3 (6th Cir.1995),
(a co-worker allegedly sexually harassed plaintiff, spread rumors about her, and “pushed” the
plaintiff “against her locker and slammed its doors against her.” In affirming summary
judgment for defendant the Sixth Circuit held, “the district court was correct in concluding
that the ‘outrageous and extreme’ level that [the co-worker's] behavior would have to rise to
here, in order to constitute an intentional infliction of emotional distress under Ohio law, has
not been met.”) Id. at * 17-18; Norman v. City of Lorain, OH 2006 WL 3337466, *2 (N.D.
Ohio, Nov. 16, 2006) (Police officer attempted to place plaintiff in handcuffs and forced her
right arm behind her back “really hard,” which allegedly caused Plaintiff's arm to break.
Officer’s alleged actions insufficient to support IIED claim.); Boggs v. Avon Prods., Inc., 56
Ohio App.3d 67, 73 (Ohio Ct.App.1990) (plaintiff’s allegations that his supervisor harassed
and threatened him after plaintiff’s accident, knowing that such conduct would cause him
anxiety, did not support IIED claim).
Campbell’s statement does not rise even to these objectionable levels. Campbell’s
statement does not indicate a present threat to cause harm to McIntosh. While it is offensive
and possibly malicious, malicious conduct does not support an IIED claim. “Only the most
extreme wrongs, which do gross violence to the norms of a civilized society, will rise to the
level of outrageous conduct.” Brown v. Denny (1991), 72 Ohio App.3d 417, 423, 594 N.E.2d
In Wilson v. Columbus Board of Education, 589 F.Supp.2d 952 (S.D. Ohio 2008) an
assistant principal at a school attended by plaintiff, an eighth grade student, suspended
plaintiff for conduct issues at school. The assistant principal suspected plaintiff was being
abused at home by her stepfather and also knew plaintiff would be at home during the
suspension with her abuser, yet still imposed the suspension. The assistant also read an
Incident Report containing representations of plaintiff’s misconduct to her abuser without
regard for the potential consequences. Plaintiff sued for IIED and the Court found the
assistant principal’s actions may have constituted poor judgment but did the alleged acts did
not support an IIED claim. Id. at 971. Thus, even conduct that places another in potential
danger has been found not to support an IIED claim.
In light of Ohio’s narrow definition of extreme and outrageous conduct, the Court
finds McIntosh’s Complaint does not cite sufficient facts demonstrating a plausible claim for
IIED. Therefore, the Court grants Defendant’s Motion and dismisses Plaintiff’s IIED claim
For the foregoing reasons, the Court grants RTA’s Motion and dismisses without
prejudice Plaintiff’s race discrimination claims (Counts I & II) under federal and Ohio law,
Plaintiff’s IIED claim (Count VII) and dismisses Plaintiff’s request for punitive damages
under federal and Ohio law and request for attorney fees under Ohio law.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: October 12, 2016
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