Hush v. Cedar Fair L.P. et al

Filing 26

Order: Defendant's motion to dismiss (Doc. 20 ) be, and the same hereby is, denied. Judge James G. Carr on 2/9/17. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Connie Hush,

Case No. 3:16CV1775
Plaintiff,
v.

ORDER

Cedar Fair, L.P., et al.,
Defendants.

This case arises out of a sexual assault that defendant Domenico Grace-Iacovetta (Iacovetta),
a Caucasian male aged twenty-one, perpetrated against a fourteen-year-old African-American female.
Plaintiff, the child’s mother, brings this suit against defendant Cedar Fair, L.P., operator of Cedar
Point Amusement Park, where the assault took place.
Pending is Cedar Fair’s motion to dismiss plaintiff’s amended complaint. (Doc. 20).
For the reasons that follow, I deny the motion to dismiss.
Background
On Saturday, October 10, 2015, the plaintiff’s daughter and Iacovetta were working at
Cedar Point. The victim had worked there during the Summer, and she and Iacovetta were, according
to the complaint, “[a]s part of fall weekend events,” among those whom “Cedar Point Amusement
Park employs [as] additional persons to assist in the operation of its carnival game.” (Doc. 16, ¶14).
Iacovetta was “part of the contingent of weekend employees who were participating and representing
the Phi kappa (sic) Tau fraternity to obtain funds for their fraternity from monetary compensation
paid to them as weekend workers at Cedar Point. (Id. at ¶19).

The complaint alleges that “[a]t all times Cedar Point management maintains sole discretion
over the assignments, the right to assignments and the number of hours and locations to which these
persons perform work for Cedar Point,” (Id. at ¶15), requiring “[t]hese short term employees [to]
adhere to the rules and regulations of Cedar Point as well as grooming rules imposed by Cedar
Point.” (Id. at ¶16). Such “short term employees receive a set hourly wage which reflects each hour
of work completed by each employee as well as a small monetary per hour bonus for satisfactorily
fulfilling their work commitment.” (Id. at ¶17). In addition, “Cedar Point provides further incentives
and perks to these employees including the use of weekend lodging and free admission to the
amusement park after work hours.” (Id. at ¶18).
Iacovetta and the minor girl “left the carnival games area together during work hours at
approximately 5:00 p.m. accompanying a group of others to the Cedar Point housing dormitory in
which Mr. Grace-Iacovetta and other college members were staying.” (Id. at ¶27). Cedar Point
imposes “a strict policy which prohibits the entrance by minors under the age of 18” (id. at ¶32) and
“a strict policy which prohibits bringing and/or serving alcohol by any guests or persons into the
housing dormitories which it operates.” (Id. at ¶33). The Park stations security guards “at the
entrance of its dormitories to enforce the policies.” (Id. at ¶34). Such guards are “required to check
the badge worn by minors which prominently displays their age.” (Id. at ¶35). Iacovetta and the
minor girl walked past the guard into the dormitory.
Left alone in Iacovetta’s room, where she was not supposed to be, the girl drank alcohol.
Iacovetta then sexually assaulted the child, leaving his DNA on the girl’s breast.1

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The parties have larded their briefs with a considerable amount of putative factual
assertions, none of which have I considered in adjudication of the defendant’s motion to dismiss.
See, e.g., Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997) (“Matters outside of the
pleadings are not to be considered by a court in ruling on a [Rule] 12(b)(6) motion to dismiss.”).

Discussion
1. Plaintiff’s Claims
Plaintiff asserts duplicative claims against Cedar Fair under Title VII, 42 U.S.C. § 2000, et
seq., and O.R.C. § 4112, seeking recovery against Cedar Fair for Iacovetta’s assault on her daughter.
The complaint alleges that Iacovetta’s sexual assault constituted actionable sexual harassment under
those provisions. Plaintiff asserts that Iacovetta was an “employee” as defined in § 2000e(f) of Title
VII, and Cedar Fair negligently created workplace conditions that put her daughter at a foreseeable
risk of harm. Following Iacovetta’s sexual assault, which, plaintiff alleges, created an actionable
hostile work environment, her daughter quit her job.
Plaintiff alleges that the actionable negligence on Cedar Fair’s part consisted of:
•

Failing to fulfill its statutory duty to monitor the actual working hours of its own
minor employees which resulted in a prolonged absence by K.C. from her work
station;

•

Failing to enforce its own policies prohibiting the entrance of minors to its
dormitories and dormitory rooms;

•

Failing to inquire about the influx and surge of forcible sexual assaults which was a
known problem at the Indiana University of Pennsylvania and fraternities at the
Indiana University of Pennsylvania prior to the hire of male students from that
university;

•

Failing to and negligently supervising weekend hires of persons with no safeguards
in place;

•

Placing significantly older, untrained and unsupervised temporary male weekend help
alone with 14 year old female employees;

•

Failing to enforce its own security policies.

(Id. ¶43).
Cedar Fair seeks dismissal on the basis that: 1) the complaint fails adequately to plead that
Iacovetta was its employee under § 2000e(f); 2) Iacovetta’s sexual assault did not create a hostile

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work environment; and 3) it did not negligently create workplace conditions that created a
foreseeable risk of harm to plaintiff’s daughter.
I overrule the motion to dismiss because: 1) whether Iacovetta was an employee under §
2000e(f) is immaterial; 2) the complaint adequately alleges Iacovetta’s sexual assault created a
hostile work environment; and 3) the complaint adequately alleges Cedar Fair negligently created
the conditions that created a foreseeable risk of harm to the plaintiff’s daughter.
2. Discussion
According to the Sixth Circuit, to establish a claim for sexual harassment under Title VII,
a plaintiff must prove:
1) the employee is a member of a protected class, 2) the employee was subject to
unwelcomed sexual harassment, 3) the harassment was based on the employee’s sex,
4) the harassment created a hostile work environment, and 5) the employer failed to
take reasonable care to prevent and correct any sexually harassing behavior.
Bowman v. Shawnee State Univ., 220 F.3d 456, 462-63 (6th Cir. 2000) (citing Williams v. General
Motors Corp., 187 F.3d 553, 560-61 (6th Cir.1999)).
Indisputably, the complaint adequately alleges facts relating to three of the five elements: 1)
the victim was within the protected class; 2) the assault was unwelcome; and 3) Iacovetta assaulted
the victim because of her gender.
Cedar Fair challenges the complaint’s adequacy relating to creation of a hostile work
environment and whether it took adequate precautions against a foreseeable risk of harm to the
plaintiff’s child.
In addition, Cedar Fair claims that it cannot be held liable for Iacovetta’s acts because he was
not its employee at the time. I discuss this contention first and then turn to the issues of hostile work
environment and whether Cedar Fair took reasonable steps to prevent the sexual harassment
Iacovetta inflicted on plaintiff’s daughter.

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A. Whether Iacovetta Was an
Employee Under Title VII
The parties argue over whether Iacovetta was a Cedar Fair employee under § 2000e(f). That
dispute misses the mark because whatever the nature of Iacovetta’s relationship with Cedar Fair that
weekend, Cedar Fair can be held liable if it negligently created workplace conditions that put
plaintiff’s daughter at a foreseeable risk of harm. This is so for two reasons.
First, what matters is the fact of the employer-employee relationship between Cedar Fair and
plaintiff’s daughter, not any such relationship or lack thereof vis-a-vis Cedar Fair and Iacovetta.
Plaintiff’s daughter, not Iacovetta, was the person whom Title VII protects. Were she not an
employee, her mother would have no standing to bring her claims under Title VII or O.R.C. § 4112.
As an employee, plaintiff’s daughter came directly within Title VII’s scope.
Second, as the court noted in Moore v. Countryside Care Center, Inc., 2014 WL 4110760,
*3 (E.D. Mich.);
In the context of sexual harassment, employers have been held liable in other circuits
for harassment by non-employees, including customers, clients, and patrons. See,
e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir.1998); Ligenza v.
Genesis Health Ventures of Mass., 995 F. Supp. 226, 230 (D. Mass.1998) (finding
that a nursing home may be held liable for patient misconduct when the employer has
the requisite knowledge and control over the situation and fails to take remedial
action).2

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The courts in both Lockard and Ligenza cited 29 C.F.R. § 1604.11(e), which currently

reads:
An employer may also be responsible for the acts of non-employees, with respect to
sexual harassment of employees in the workplace, where the employer (or its agents
or supervisory employees) knows or should have known of the conduct and fails to
take immediate and appropriate corrective action. In reviewing these cases the
Commission will consider the extent of the employer's control and any other legal
responsibility which the employer may have with respect to the conduct of such
non-employees.
Lockard, supra, 162 F.3d at 1073; Ligenza, supra, 995 F. Supp. at 230.
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Accord, e.g., E.E.O.C. v. Cromer Food Servs., Inc., 414 Fed. Appx. 602, 606-07 (4th Cir. 2011);
Dunn v. Washington Cty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005); Galdamez v. Potter, 415 F.3d
1015, 1022 (9th Cir. 2005); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n. 2 (11th Cir. 2003)
(dictum).
In Dunn, the Seventh Circuit explained the reason for not differentiating between employees
and non-employees: “Because liability is direct rather than derivative, it makes no difference whether
the person whose acts are complained of is an employee, an independent contractor, or for that
matter a customer. Ability to ‘control’ . . . the actor plays no role.” 429 F.3d at 691.
Whether Iacovetta was or was not an employee of Cedar Fair is not relevant or material; what
matters is whether Cedar Fair negligently allowed workplace conditions to exist that created a
foreseeable risk of harm to the plaintiff’s child.
B. Hostile Work Environment
In the typical sexual harassment case, “to determine whether a hostile work environment
exists, the Court must consider: (1) whether the conduct was severe or pervasive enough to create
an environment that a reasonable person would find hostile or abusive; and (2) whether the victim
subjectively regarded the environment as abusive” Hamilton v. Anderson Forest Prods., Inc., 2016
WL 4734375, *2 (W.D. Ky.) (citing Jordan v. City of Cleveland, 464 F.3d 584, 599 (6th Cir. 2006))
This, though, is not a typical case where the pervasiveness of the offensive conduct is at
issue. Instead, this case involves an aggravated sexual assault resulting in the predator’s sperm being
left on the child-victim’s breast.
In the Sixth Circuit, a single act of sexual assault, like that which Iacovetta committed,
suffices to allege an actionable claim for creation of a sex-based hostile work environment. Ault v.
Oberlin Coll., 620 Fed. Appx. 395, 402 (6th Cir. 2015) (assailant shoved victim against shelves in
a walk-in cooler and rubbed his genitals against her); see also Kalich v. AT&T Mobility, LLC, 679
F.3d 464, 474 (6th Cir. 2012) (“Except in the case of extreme incidents such as rape or sexual

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assault, a single, isolated event is typically insufficient to create a hostile work environment.”)
(dictum) (emphasis supplied).3
Therefore, the complaint adequately alleges that Iacovetta’s sexual assault created a hostile
work environment.
C. Negligence
In the typical case of sexual harassment allegedly resulting in an unacceptably hostile work
environment–i.e, gender-based slurs and insults, offensive or suggestive language or statements,
innuendo, or gestures, quid pro quo or other requests/demands for sexual favors, etc.–an employer,
to avoid liability, must show that it, on having knowledge or reason to know about the situation,
undertook “to implement prompt and appropriate corrective action.” See, e.g., Hafford v. Seidner,
183 F.3d 506, 513 (6th Cir. 1999) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 804
(6th Cir. 1994)). An employer is only liable when “its response manifests indifference or
unreasonableness in light of the facts the employer knew or should have known.” Blankenship v.
Parke Care Ctrs., Inc., 123 F.3d 868, 873 (6th Cir. 1997).
In this case, involving as it did a single incident of sexual harassment, the “appropriate”
action was not “remedial” or “corrective,” but rather preventative. This does not require actual
foreknowledge; instead, it calls for attentive foresight.
Contrary to Cedar Fair’s contention that potential harassment is not actionable, ordinary Ohio
negligence principles relating to risk of harm and foreseeability apply in this context:

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Other Circuits agree. E.g., Lapka v. Chertoff, 517 F.3d 974, 983-84 (7th Cir.2008) (rape by
co-worker); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1242-43 (10th Cir. 2001) (patient
attacked and digitally penetrated therapist); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.
1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (“[A]
single incident of sexual assault sufficiently alters the conditions of the victim's employment and
clearly creates an abusive work environment for purposes of Title VII liability.”); see also Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[I]solated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions of employment.’”).
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“Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after
an accident has happened, to see how it could have been avoided. But negligence is
not a matter to be judged after the occurrence. It is always a question of what
reasonably prudent men under the same circumstances would or should, in the
exercise of reasonable care, have anticipated. Reasonable anticipation is that
expectation created in the mind of the ordinarily prudent and competent person as the
consequence of his reaction to any given set of circumstances. If such expectation
carries recognition that the given set of circumstances is suggestive of danger, then
failure to take appropriate safety measures constitutes negligence. On the contrary,
there is no duty to guard when there is no danger reasonably to be apprehended.
Negligence is gauged by the ability to anticipate. Precaution is a duty only so far as
there is reason for apprehension. Reasonable apprehension does not include
anticipation of every conceivable injury. There is no duty to guard against remote and
doubtful dangers.”
Wheatley v. Marietta Coll., 48 N.E.3d 587, 608-09 (Ohio App. 2016) (quoting Hetrick v. MarionRes. Power Co., 141 Ohio St. 347, 358-59 (1943) (quoting 1 Shearman and Redfield on Negligence,
Rev. Ed., 50, § 24)).
The “particular defendant need not foresee the specific harm caused by its negligence, if the
harm would have been foreseeable to a reasonably prudent person.” Queen City Terminals, Inc. v.
Gen. Am. Transp. Corp., 73 Ohio St. 3d 609, 619 (1995).
But where injury results to a business invitee, such as plaintiff’s daughter, Gillotti v. Rimedio,
2003 WL 22427760, *4 (Ohio App.), from a third party’s criminal acts, “Ohio courts appear to have
taken a strict approach to the foreseeability analysis.” Wheatley, supra, 48 N.E.3d at 609. “‘To show
foreseeability [of a third person's criminal act], one must demonstrate that the specific harm at issue
was foreseeable.’” Heimberger v. Zeal Hotel Grp., Ltd., 42 N.E.3d 323, 332 (Ohio App. 2015)
(quoting Maier v. Serv-All Maint., Inc., 705 N.E.2d 1268, 1274 (Ohio App. 1997)).
In making this assessment, a court (or jury) takes into account the totality of the
circumstances. Gillotti, supra, 2003 WL 22427760, at *4. The “totality of the circumstances must
be somewhat overwhelming before a business will be held to be on notice of and therefore under a
duty to protect against the criminal acts of third parties.” Id. at *5.
Taking these principles of Ohio negligence/foreseeability law into account, I conclude that
the plaintiff has adequately pled negligence on the defendant’s part. That Cedar Fair apprehended,
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to some degree at least, that it needed to protect its employee/business invitees from danger–
including criminal acts–is apparent from maintaining security (i.e., a guard at the dormitory entrance
who keeps minors (and, presumably, others who do not belong in the dorm because of the dangers
they may pose) out).
The complaint alleges that Cedar Fair failed to carry through its duty to maintain dorm
security as the child victim was taken inside. The guard was there, or supposed to be there, to make
sure no one–a minor female employee or a park goer from outside–entered the dorm. It is a fair and
entirely plausible inference from the facts alleged in the complaint that Cedar Fair wanted that
precaution in place because it knew that leaving its dormitory doors open to anyone and everyone
could and, in time, would lead to criminal activity within the dorm.
For whatever reason, when Iacovetta took the plaintiff’s daughter into the dorm, the
protection against that entry and, thus, the protection against sexual assault, was not there. It is also
plausible to conclude that but for the absence or absent-mindedness of a guard, no harm would have
befallen the young girl.
Cedar Fair, a rational jury could find, knew of the danger to persons in its dormitories if the
doorways were unguarded; those dangers encompassed, a rational jury could find, criminal acts by
third parties, whether they themselves were lawfully in the dorm or not.
The complaint also alleges insufficient supervisory oversight of “the actual working hours
of its own minor employees which resulted in a prolonged absence by [plaintiff’s daughter] from her
work station,” while concurrently failing adequately to supervise temporary workers like Iacovetta.4
(Doc. 16, ¶43). A plausible inference arises from that allegation that harm, including harm from
criminal acts, could threaten a minor female employee if lax oversight allowed her to roam around

4

I note that, in any event, Cedar Fair was, contrary to plaintiff’s contention, under no duty
to conduct a criminal background check of Iacovetta and his companions. See Peters v. Ashtabula
Metro. Hous. Auth., 624 N.E.2d 1088, 1091 (Ohio App. 1993).
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the park when she was to have been at her work station. Alone, that inference might not be enough
to find the complaint’s allegation of negligence sufficient. But a rational jury might fairly find that
the failure to supervise the child’s comings and goings contributed to what happened to her that
afternoon.
I conclude that at this stage, plaintiff has alleged circumstances that entitle her to proceed
with this litigation.
Conclusion
Whether Iacovetta was or was not an employee while at Cedar Point on October 14, 2015,
does not matter. While there, Iacovetta sexually assaulted a fourteen-year-old girl. The complaint’s
recitation of the totality of the circumstances suffices to assert a plausible claim for sexual
harassment that created a hostile workplace environment.
Viewed most strongly in plaintiff’s favor, the complaint also adequately alleges that Cedar
Fair foresaw the risk of harm, including harm from criminal acts, that would arise to persons in its
dorms if the doorway were not guarded adequately. It does not matter whether the victim or the
perpetrator would have been kept out had the doorkeeper done his or her job. What matters is the
foreseeability that unauthorized entry created the danger, and that among those dangers was crime
and resulting harm.
It is, accordingly,
ORDERED THAT: defendant’s motion to dismiss (Doc. 20) be, and the same hereby is,
denied.
The Clerk shall forthwith schedule a telephonic status/scheduling conference.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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