Doe et al v. Archdiocese of Cincinnati et al

Filing 15

ORDER AND OPINION: 1. Defendant Michael Asbeck's Motion for Judgment on the Pleadings (Doc. 11 ) is GRANTED IN PART AND DENIED IN PART; 2. Judgment is ENTERED in favor of Asbeck on Plaintiffs' Intentional Infliction of Emotional Distress claim only as it applies to Asbeck's alleged physical assault of Mrs. Doe; and 3. The portion of Plaintiffs' Intentional Infliction of Emotional Distress claim arising from As beck's alleged sexual harassment of Mrs. Doe SHALL PROCEED. IT IS SO ORDERED. Signed by Judge Matthew W. McFarland on 06/05/2024. (kaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI

JANE DOE, et al.,

Case No. 1:23-cv-318
Plaintiffs,

Judge Matthew W. McFarland

V.

ARCHDIOCESE OF CINCINNATI, et al.,
Defendants.

ORDER AND OPINION

This matter is before the Court on Defendant Michael Asbeck's Motion for
Judgment on the Pleadings (Doc. 11). Plaintiffs filed a Response in Opposition to the
Motion (Doc. 12), to which Defendant Michael Asbeck filed a Reply in Support (Doc. 13).
Thus, this matter is ripe for the Court's review. For the reasons below, Defendant Michael
Asbeck's Motion for Judgment on the Pleadings (Doc. 11) is GRANTED IN PART AND
DENIED IN PART.
ALLEGED FACTS

From 2000 to 2021, Plaintiff Jane Doe was an administrative assistant for
Defendant Archbishop Moeller High School. (Compl., Doc. 4,

,r,r 6, 32.) In 2012, Moeller

hired Defendant Michael Asbeck to be the athletic director for the school. (Id. at

,r

7.)

Relevant to this Order is Asbeck' s conduct towards Mrs. Doe while they were both
employed by Moeller.
In 2016, Asbeck began subjecting Mrs. Doe to unwanted and unsolicited sexual

advances while on Moeller's campus. (Compl., Doc. 4,

,r 13.) For example, Asbeck (1)

"continually commented on Mrs. Doe's clothing choices and appearance;" (2) "[t]ouched
and hugged Mrs. Doe inappropriately, at times when Mrs. Doe was unable to escape;"

(3) "[i]nsisted that Mrs. Doe stand closer while working [together];" (4) "[r]eported to
Mrs. Doe, in graphic detail, his reaction to her;" and (5) " [s]uggested that Mrs. Doe engage
in a sexual relationship with him." (Id.) Mrs. Doe consistently and repeatedly denied
these advances, and avoided Asbeck in any way possible. (Id. at

,r 14.) But, Asbeck's

conduct continued through February 2021. (Id. at ,r 13.)
In September 2020, Asbeck trapped Mrs. Doe in the Moeller athletic office and
made sexual advances towards her. (Compl., Doc. 4,

,r 19.) Mrs. Doe refused, reminding

him that there were security cameras in the office. (Id.) Asbeck then pulled Mrs. Doe into
his personal office, noted that there were no security cameras there, and began kissing
and groping her. (Id.) Asbeck then described, in graphic detail, the sexual actions he
intended to engage in with Mrs. Doe. (Id.) Mrs. Doe was eventually able to escape. (Id.)
The alleged misconduct did not stop there. In December 2020, Asbeck cornered
Mrs. Doe in the Moeller concession stand. (Compl., Doc. 4,

,r 20.) There, Asbeck taunted

Mrs. Doe, stating that there were no cameras in the stand. (Id.) Asbeck then trapped Mrs.
Doe in a corner of the stand and raped her. (Id.) As a result of Asbeck's conduct, Mrs. Doe
suffers serious physical and mental issues, including post-traumatic stress disorder. (Id.
at ,r 29.)

PROCEDURAL POSTURE
On April 26, 2023, Mrs. Doe and her husband, John Doe, brought various claims

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against Moeller, Asbeck, and the Archdiocese of Cincinnati. (See Notice of Removal, Doc.
1, Pg. ID 1; Compl., Doc. 4.) Moeller and the Archdiocese removed the action to this Court,
with the consent of Asbeck. (See Notice of Removal, Doc. 1, Pg. ID 1.)
Plaintiffs' Intentional Infliction of Emotional Distress ("IIED") claim against
Asbeck is relevant for purposes of this Order. (See Compl., Doc. 4, ,r,r 62-68.) In that claim,
Plaintiffs allege that "[b]y sexually assaulting and sexually harassing Mrs. Doe, Asbeck
intended to cause Mrs. Doe emotional distress." (Id. at

,r

63.) Asbeck now moves for

partial judgment on the pleadings, arguing that Plaintiffs' IIED claim should be dismissed
as time barred. (See Motion, Doc. 11.)
LAW

The standard of review for a Rule 12(c) motion for judgment on the pleadings is
the same as for a motion under Rule 12(b)(6) for failure to state a claim. Fritz v. Charter

Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). The Court construes the complaint in
the light most favorable to the plaintiff, accepts all allegations as true, and draws all
reasonable inferences in the plaintiff's favor. Coley v. Lucas CnhJ., 799 F.3d 530, 537 (6th
Cir. 2015). "[T]he plaintiff must plead 'sufficient factual matter' to render the legal claim
plausible, i.e., more than merely possible." Fritz, 592 F.3d at 722. "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." Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). And, although the Court accepts well-pleaded factual
allegations as true, it need not accept "a formulaic recitation of the elements of a cause of
action" or "legal conclusions couched as factual allegations." Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 555 (2007) (citation omitted).
ANALYSIS

Asbeck maintains that Plaintiffs' IIED claim is barred by the one-year statute of
limitations for assault and battery claims. (Motion, Doc. 95, Pg. ID 95-99.) In response,
Plaintiffs argue that their IIED claim is instead subject to Ohio's six-year statute of
limitations for sexual harassment in the workplace. (Response, Doc. 12, Pg. ID 103.)
Plaintiffs' IIED claim is governed by Ohio law. Exxon Mobil Corp. v. Fenelon, 76 F.
App'x 581,587 (6th Cir. 2003). Under Ohio law, the statute of limitations for IIED claims
is generally four years. Ohio Rev. Code§ 2305.09(D). But, "when the acts underlying the
[IIED] claim would support another tort, the statute of limitations for that other tort
governs the [IIED] claim." Stafford v. Clever Investigations, No. 06AP-1204, 2007 Ohio App.
LEXIS 4509, at *4 (Ohio Ct. App., Sept. 27, 2007) (citations omitted). "In order to determine
the applicable statute of limitations for a particular claim, courts must look to the actual
nature or subject matter of the acts giving rise to the complaint, rather than the form in
which the action is pleaded." Id.
For example, in Doe v. First United Methodist Church, the Ohio Supreme Court
determined that the plaintiffs IIED claim was based on the same events as his battery
claim. 629 N.E.2d 402, 536-37 (1994). In that case, the plaintiff sued his former choir
director for sexual abuse. Id. at 536. The Ohio Supreme Court found that "the essential
character" of the plaintiff's IIED claim "entailed intentional acts of offensive contact." Id.
at 536. Therefore, the plaintiff's IIED claim was subject to the one-year statute of
limitations for assault and battery. Id. at 537.
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Another case is similarly illustrative. In Johnson v. Cox, an Ohio appellate court
applied Doe in finding that an IIED claim based on sexual harassment was subject to the
limitations period for a sexual harassment claim, rather than the IIED statute of
limitations. No. 96CA622, 1997 Ohio App. LEXIS 1346, at* 10-15 (Ohio Ct. App. Mar. 28,
1997). Important to the court's decision, the relevant harassment occurred in the
workplace. Id. at *12. So, the Court applied the six-year statute of limitations under Ohio
Revised Code§ 4112.02(A), which bars sexual harassment in the workplace by employers.

See id.
Turning back to the case at hand, the Court concludes that the "subject matter" of
Plaintiffs' IIED claim relates to underlying claims of both physical assault and sexual
harassment in the workplace. As alleged in the Complaint, "[b]y sexually assaulting and
sexually harassing Mrs. Doe, Asbeck intended to cause Mrs. Doe emotional distress, or
knew or should have known that his actions would result in serious emotional distress."
(Compl., Doc. 4,

,r 63.) As detailed more fully below, the portion of Plaintiff's IIED claim

that is based on Asbeck' s physical assault of Mrs. Doe is time barred, while the portion
of Plaintiff's IIED claim that is based on Ashbeck' s sexual harassment of Mrs. Doe may
proceed.
I.

Plaintiffs' IIED claim as it Relates to Physical Assault

Plaintiffs' IIED claim is premised, at least in part, on Asbeck's "offensive contact"
with Mrs. Doe. Doe, 629 N.E.2d at 536-37. In particular, Asbeck' s alleged physical assault
of Mrs. Doe in September and December 2020 forms a basis for Plaintiff's IIED claim. (See
Compl., Doc. 4, ,r,r 19-20.) This portion of Plaintiffs' IIED claim relates to Asbeck's alleged

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physical abuse of Mrs. Doe and is, therefore, subject to the one-year statute of limitations
for assault and battery. See Doe, 629 N.E.2d at 407. The clock begins to run for statutory
limitation purposes when the cause of action accrues. See Smith v. Dolgen Midwest, No.
2:19-CV-4333, 2020 U.S. Dist. LEXIS 189707, at *6 (S.D. Ohio Oct. 13, 2020). Asbeck's last
physical assault of Mrs. Doe occurred in December 2020. (Compl., Doc. 4,

,r 13.) But, the

Complaint was not filed until April 26, 2023. (See id.) Accordingly, this portion of
Plaintiffs' IIED claim is time barred.
II.

Plaintiffs' IIED claim as it Relates to Sexual Harassment

Plaintiffs' IIED claim is also based on Asbeck' s alleged sexual harassment of Mrs.
Doe. As beck commented on Mrs. Doe's clothes and appearance, described his reactions
to her "in graphic detail," and even outright suggested that Mrs. Doe engage in sexual
relations with him. (Compl., Doc. 4,

,r 13.) Asbeck's advances were all unwelcomed. (Id.

at ,r 14.) This misconduct partially forms the basis for Plaintiffs' IIED claim (See Compl.,
Doc. 4, ,r 63), and constitutes a claim for sexual harassment in the workplace. See Johnson,
1997 Ohio App. LEXIS 1346, at *10-11. Thus, as it applies to Asbeck's sexual harassment
of Mrs. Doe, Plaintiffs' IIED claim is subject to the six-year statute of limitations period
under Ohio Revised Code§ 4111.02(A). As Asbeck harassed Mrs. Doe until January 2021,
this portion of the claim is timely and may proceed.
Asbeck argues that the portion of Plaintiffs' IIED claim based on his alleged sexual
harassment still fails for other reasons. First, Asbeck argues that Plaintiffs' allegations of
his harassment are too vague and conclusory to support their IIED claim. (Reply, Doc. 13,
Pg. ID 111-12.) Asbeck maintains that the Complaint fails to identify "the frequency,
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nature, substance[,] context, time of occurrence, inappropriateness, or unwelcomeness of
any of the alleged conduct." (Id. at Pg. ID 112.) But, Plaintiffs are not required to provide
II

such detailed factual allegations" at the pleading stage. Twombly, 550 U.S. at 555. Rather,
Plaintiffs must present sufficient allegations to give Asbeck "fair notice of what the ...
claim is and the grounds upon which it rests." Id. Plaintiffs do just that. The Complaint
sets forth specific types of misconduct by Asbeck within the workplace from 2016 to 2021.
(See Compl., Doc. 4.) These allegations range from Asbeck's comments about Mrs. Doe's

appearance to his reactions and expressed sexual desires for her. (Id. at

,r

13.) These

allegations are neither vague nor conclusory, and they provide notice to Asbeck of the
basis for Plaintiffs' IIED claim.
Next, Asbeck argues that the alleged harassment is not" extreme and outrageous"
enough to support a claim for IIED. (Reply, Doc. 13, Pg. ID 112-15.) To establish a claim
for IIED, the plaintiff must show, among other things, that the defendant's conduct was
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so extreme and outrageous as to go beyond all bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community." Yeager v. Loe. Union 20,
453 N .E.2d 666, 671 (Ohio 1983). "[M]ere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities" are insufficient acts to give rise to an IIED claim. Id.
Determinations on whether conduct is extreme and outrageous is often a fact intensive
inquiry. See Morningstar v. Circleville Fire & EMS Dep't, No. 2:15-CV-3077, 2018 U.S. Dist.
LEXIS 43134, at *57 (S.D. Ohio Mar. 16, 2018).
Courts hesitate to dismiss IIED claims where the allegations could reasonably be
inferred to create a basis for extreme and outrageous conduct. See, e.g., Aker v. New York
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& Co., 364 F. Supp. 2d 661, 667 (N.D. Ohio 2005) (citing Michaels Bldg. Co. v. Ameritrust
Co., N.A., 848 F.2d 674, 679 (6th Cir. 1988) (It did not "appear beyond doubt that [the

plaintiff] can prove no set of facts that [the] defendant's actions were extreme and
outrageous.")). In those cases, the courts founds that an extreme and outrageous
determination is more appropriate for consideration once discovery is complete. See, e.g.,
Soehner v. Time Warner Cable, No. l:08-CV-166, 2009 U.S. Dist. LEXIS 137719, at *6-8 (S.D.

Ohio Mar. 17, 2009). However, when reasonable inferences show that the alleged conduct
is clearly too minor to be extreme and outrageous, dismissal is appropriate. See, e.g.,
Stewart v. Suarez Corp. Indus., No. 5:15-CV-1425, 2015 U.S. Dist. LEXIS 164307, at*12 (N.D.

Ohio Dec. 8, 2015) (employer did not engage in extreme and outrageous conduct when
he terminated an employee and incorrectly suggested to others that the employee was
intending to retire).
The Complaint presents sufficient factual content to create a reasonable basis for
extreme and outrageous conduct by Asbeck. For five years, Asbeck subjected Mrs. Doe
to unwanted, graphic comments about her appearance and his sexual desires for her.
(Compl., Doc. 4, 113.) Despite Mrs. Doe repeatedly denying these advances, Asbeck did
not stop. (Id.) These sorts of allegations create a reasonable basis for extreme and
outrageous conduct. See, e.g., Soehner, 2009 U.S. Dist. LEXIS 137719, at *6-8 (allegations
pertaining to an employer's continued comments and threats to an employee, which the
employer knew caused the employee distress, were sufficient to allow the IIED claim to
proceed); Zimmer v. Ashland Univ., No. 00-CV-630, 2001 U.S. Dist. LEXIS 15075, at *36-37
(N.D. Ohio Sept. 5, 2001) (daily comments, suggestions, and physical contact over
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multiple months created factual question on whether the conduct was extreme and
outrageous). Accordingly, Asbeck has not shown that Plaintiffs' IIED claim, as it applies
to As beck's alleged harassment, fails.
*

*

*

Plaintiffs' IIED claim is premised both on claims of physical assault and sexual
harassment in the workplace. The portion of Plaintiffs' IIED claim that relates to Asbeck's
alleged physical assault of Mrs. Doe is subject to the one-year statute of limitations for an
assault and battery claim. Doe, 629 N.E.2d at 536-37. This portion of Plaintiffs' IIED claim
has passed the limitations period and can no longer proceed. See Dolgen Midwest, 2020
U.S. Dist. LEXIS 189707, at *6. The portion of Plaintiffs' IIED claim that relates to sexual
harassment is subject to the six-year statute of limitations for sexual harassment in the
workplace. See Johnson, 1997 Ohio App. LEXIS 1346, at *10-11. This portion of the claim is
timely and may proceed accordingly.
CONCLUSION

Based on the foregoing reasons, the Court ORDERS the following:
1. Defendant Michael Asbeck's Motion for Judgment on the Pleadings
(Doc. 11) is GRANTED IN PART AND DENIED IN PART;
2. Judgment is ENTERED in favor of Asbeck on Plaintiffs' Intentional
Infliction of Emotional Distress claim only as it applies to Asbeck's
alleged physical assault of Mrs. Doe; and

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3. The portion of Plaintiffs' Intentional Infliction of Emotional Distress
claim arising from As beck's alleged sexual harassment of Mrs. Doe
SHALL PROCEED.
IT IS SO ORDERED.

UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

By:

--il,~._,:"W, ~ ~

JUDGE MATTHEW W. McFARLAND

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