Subbramanian v. Cincinnati Children's Hopital Medical Center
Filing
17
ORDER granting 4 Motion to Dismiss Count VII for Failure to State a Claim. Signed by Judge Michael R. Barrett on 9/28/13. (ba1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Dr. Ramu Subbramanian
Plaintifs,
Case No. 1:12cv701
v.
Judge Michael R. Barrett
Cincinnati Children’s
Hospital Medical Center,
Defendant.
OPINION & ORDER
This matter is before the Court upon Defendant Cincinnati Children’s Hospital
Medical Center’s Motion to Dismiss. (Doc. 4.) Plaintiff Dr. Ramu Subbramanian filed a
Response. (Doc. 11). Defendant filed a Reply. (Doc. 12).
I.
BACKGROUND
Plaintiff was formerly employed by Defendant in the Department of Pediatrics.
(Doc. 1, ¶ 1). Plaintiff is an Indian male who practices the Hindu faith. (Id.) Plaintiff
claims that in July of 2011, one of Defendant’s directors, Dr. Margaret Hostetter,
prevailed upon Defendant to withdraw Plaintiff’s employment contract renewal. (Id., ¶
7). Defendant terminated Plaintiff on August 25, 2011. (Id., ¶ 8).
Plaintiff claims that Dr. Hostetter’s actions were motivated by discriminatory
animus toward Plaintiff because of his national origin and/or religion, rather than any
legitimate reason. (Id., ¶ 9). Plaintiff claims that Dr. Hostetter’s bias was influenced and
exacerbated by a culture at the hospital which was hostile toward Asians, and nonChristians.
(Id., ¶ 10).
Plaintiff explains that this religiously-intolerant and racially-
hostile environment was supervised and condoned by Dr. Hostetter. (Id., ¶ 16).
Plaintiff claims that the discriminatory culture was promoted primarily by
Defendant’s employee, Monica McNeal.
(Id., ¶ 11).
Plaintiff explains that his
termination and the termination of two other non-Christian Ph.D’s of Asian descent led
to scientific contributions, grant funding and resources which benefitted McNeal. (Id.)
As one example of the discriminatory culture, Plaintiff claims that Defendant
regularly convened HR meetings to address internal issues related to “working
together.” Plaintiff claims that among the topics of discussion were claims by non-Asian
employees that their colleagues of Asian descent were “dirty” in the lab and “smelled of
soy sauce.” (Id., ¶ 12). As another example, Plaintiff claims that upon returning from a
visit to India, McNeal asked Plaintiff why “your people have nothing inside their houses,
which are more like shacks, and how can they sleep on floors paved with cow dung?”
(Id., ¶ 13). Plaintiff explains that another colleague told Plaintiff “not only Pakistanis,
you know Indians can be terrorists . . . they caught this Indian guy who was selling
missiles!”
(Id., ¶ 14).
Plaintiff also claims that several colleagues would make
evangelical suggestions, such as warning Plaintiff with statements that began “when the
judgment day comes . . .” (Id., ¶ 15). Plaintiff claims that these colleagues would also
comment “I just don’t get how that works, worshiping multiple gods” (referring to
Plaintiff’s Hindu faith). (Id.)
Plaintiff brings claims pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. for national origin and religious discrimination. Plaintiff also
brings state law discrimination claims under Ohio Revised Code § 4112, as well as
claims for promissory estoppel, breach of the duty of good faith and fair dealing and
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intentional infliction of emotional distress.
Defendant’s Motion to Dismiss only addresses Plaintiff’s claim for intentional
infliction of emotional distress.
II.
ANALYSIS
A. Motion to Dismiss Standard
When reviewing a 12(b)(6) motion to dismiss for failure to state a claim, this
Court must "construe the complaint in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in favor of the plaintiff." Bassett
v. National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). "[T]o survive a motion to dismiss, 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 action's elements,' and (3) allegations
that suggest a 'right to relief above a speculative level.'" Tackett v. M&G Polymers,
USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)). A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
B. Intentional infliction of emotional distress
Under Ohio law, the elements of intentional infliction of emotional distress are: (1)
extreme and outrageous conduct; (2) of intentional or reckless character; and (3) that
causes severe emotional distress. Yeager v. Local Union 20, 453 N.E.2d 666, 671
(1983) (abrogated on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (2007)).
Defendant argues that Plaintiff fails to state a claim for intentional infliction of
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emotional distress because none of the alleged statements were made by a supervisor
or decision-maker.
Plaintiff’s intentional infliction of emotional distress claim is based upon the
statements of McNeal and other co-workers. 1
“Ohio has traditionally held that the
employer may be liable only if the offending co-worker's acts are attributable to the
employer under the doctrine of respondeat superior.” Baab v. AMR Servs. Corp., 811
F. Supp. 1246, 1264 (N.D. Ohio 1993) (citing Miller v. Reed, 499 N.E.2d 919 (Ohio Ct.
App. 1986); Hester v. Church's Fried Chicken, 499 N.E.2d 923 (Ohio Ct. App. 1986)).
Under Ohio law, “in order for an employer to be liable under the doctrine of respondeat
superior, the tort of the employee must be committed within the scope of employment.
Moreover, where the tort is intentional . . . the behavior giving rise to the tort must be
‘calculated to facilitate or promote the business for which the servant was employed.’”
Byrd v. Faber, 565 N.E.2d 584, 587 (Ohio 1991) (quoting Little Miami R. Co. v.
Wetmore, 19 Ohio St. 110, 132 (Ohio 1869)). Therefore, “‘an intentional and wilful
attack committed by an agent or employee, to vent his own spleen or malevolence
against the injured person, is a clear departure from his employment and his principal or
employer is not responsible therefor.’ . . . In other words, an employer is not liable for
independent self-serving acts of his employees which in no way facilitate or promote his
business.” Id. at 588 (quoting Vrabel v. Acri, 103 N.E.2d 564 (Ohio 1952)).
The Court finds that Plaintiff’s allegations do not establish liability on the part of
Defendant under the doctrine of respondeat superior. In his Complaint, Plaintiff alleges
1
In his Complaint, Plaintiff claims that “the religiously-intolerant and racially-hostile
environment” was supervised and condoned by Dr. Hostetter. (Doc. 1, ¶ 16). However, Plaintiff
has not argued that his claim for intentional infliction of emotional distress is based on this
allegation.
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that McNeal and other co-workers made discriminatory comments, but did not allege
that these comments were calculated to facilitate or promote Defendant’s business of
operating a hospital. However, in his Response to Defendant’s Motion, Plaintiff explains
that McNeal and the other co-workers “made such xenophobic comments in a
misguided and unlawful attempt to promote Defendant’s business.” (Doc. 11, at 6).
On their face, the comments appear to be nothing more than “intentional and
willful attack[s]” by McNeal and the other co-workers “to vent [their] own spleen[s] or
malevolence” against Plaintiff. Because these comments are a clear departure from
their employment, Defendant is not responsible for them. Even if the Court were to
accept the allegation that McNeal and the other co-workers believed that an all
Christian, non-Asian workforce would facilitate or promote the business of the hospital,
the Court would still find that Plaintiff’s claim fails.
Liability for intentional infliction of emotional distress “does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities” and
“liability has been found only where the conduct has been 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.” Yeager, 453
N.E.2d at 671 (quoting Restatement of the Law 2d, Torts (1965) 73, Section 46).
Accordingly, this Court has explained that even though “repeatedly asking when an
employee will resign, joking about her in the office, retaining her personal possessions
after she was discharged, and repeatedly inquiring into an employee's religious beliefs
reasonably would be upsetting to the employee, such conduct also does not rise, as a
matter of law, to the level of ‘extreme’ and ‘outrageous.’” Hartley v. Dayton Computer
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Supply, 106 F. Supp. 2d 976, 982 (S.D. Ohio 1999) (citing Slone v. Martin Marietta
Energy Sys., No. 95–4182, 1997 WL 139794 (6th Cir. Mar. 26, 1997)); see also Baab v.
AMR Servs. Corp., 811 F. Supp. at 1269 (“to say that Ohio courts narrowly define
‘extreme and outrageous conduct’ would be something of an understatement.”) (citing
Anthony v. TRW, Inc., 726 F.Supp. 175, 181 (N.D.Ohio 1989) (“Ohio courts have
stringently applied the intentional infliction standards in employment actions.”)). 2
Plaintiff also claims that the comments of his co-workers, in combination, created
a culture at the hospital which was hostile toward Asians and non-Christians. Plaintiff
alleges that this culture led to his termination, along with two other non-Christian Ph.D’s
of Asian descent. In his Complaint, Plaintiff alleges: “In all three cases, Ms. McNeal
was the ultimate beneficiary of the scientific contributions, grant funding and resources
attributable to these individuals following their terminations.” (Doc. 1, ¶ 11). In his
Response to Defendant’s Motion, Plaintiff explains that “[u]pon termination of the
Plaintiff, and other Asian PhDs, McNeal was able to secure additional grant funding to
support the Defendant.” (Doc. 11, at 6).
The Court concludes that the disparity in these allegations does not make a
2
This Court has collected some examples of allegations of severe conduct which have
fallen short of establishing extreme and outrageous conduct:
Wolfe v. Thermo Fisher Scientific, Inc., No. 08–933, 2009 WL 1255023, at *l–3
(S.D.Ohio May 4, 2009) (employer falsely imprisoning plaintiff for four hours with
no food or water while interrogating, intimidating, harassing, and embarrassing
her was insufficiently extreme or outrageous); Rubin v. Ford Motor Co., No. 04–
836, 2006 WL 2128934, at *5–6 (S.D. Ohio July 27, 2006) (finding employer's
“intentional, offensive and unjustified pattern of conduct (both verbal and
physical),” including poking and swearing at plaintiff, to be insufficiently extreme
or outrageous); Hill v. Village of West Lafayette, No. 95 CA 27, 1996 WL 487943,
at *4–6 (Ohio Ct.App. May 24, 1996) (employer's false disciplinary charges and
defamatory conduct against plaintiff insufficiently extreme or outrageous).
McDaniel v. PNC Bank, 2:11-CV-0683, 2012 WL 368066, *3 (S.D. Ohio Feb. 3, 2012).
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difference because neither scenario supports a claim for intentional infliction of
emotional distress.
If funding became available after Plaintiff’s termination and
benefitted McNeal only, the acts of McNeal and others did not facilitate or promote
Defendant’s business. On the other hand, if the termination of Plaintiff and the other
employees allowed for additional funding for Defendant, “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.” Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376
(6th Cir. 1999) (citing Baab v. AMR Services Corp., 811 F.Supp. 1246, 1269 (N.D.Ohio
1993)); see also Moore v. Impact Cmty. Action, 2013 WL 3873976, *4 (Ohio Ct. App.
July 23, 2013) (“evidence of a hostile work environment is not necessarily sufficient to
support a claim for intentional infliction of emotional distress”). While Plaintiff is free to
prove that his termination was discriminatory, Plaintiff cannot base his claim for
intentional infliction of emotional distress upon this termination alone.
III.
CONCLUSION
Based on the foregoing, Defendant’s Motion to Dismiss (Doc. 4.) is GRANTED.
IT IS SO ORDERED.
s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
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