Miller v. Food Concepts International, LP et al

Filing 36

ORDER and REPORT AND RECOMMENDATIONS. The Magistrate Judge RECOMMENDS that plaintiffs claims for violation of the FLSA and breach of contract for wages and benefits, plaintiff Autreys claims for hostile work environment against defendants Del Vecchio , Food Concepts International, LP, and Abuelos International LP, and plaintiff Johnsons claim for discrimination, segregation of separation against defendants Del Vecchio, Food Concepts International, LP, and Abuelos International LP proceed. It is F URTHER RECOMMENDED that all other claims for Retaliation-Discrimination in Violation of O.R.C. §4112.02(1) and O.R.C. §4112.99; Retaliation -42 U.S.C. §1981; Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.
67;4112.02(1) and O.R.C. §4112.99; Discrimination, Segregation or Separation because of Ancestry, Color, National Origin, Race or Religion- Harassment-Hostile Work Environment; and, Retaliation - Discrimination - Harassment - Loss of Tangible Job Benefits be DISMISSED with PREJUDICE for counsels failure to tender amended complaints meeting the fair notice requirements of Rule 8(a), Fed. R. Civ. P. Signed by Magistrate Judge Mark R. Abel on 1/17/2014. (Rubey, Rachel)

IN THE UNITED STATES DISTRICT COURT
THE SOUTHERN DISTRICT OF OHIO
FOR EASTERN DIVISION
Joseph Miller, et al.,

:
Plaintiffs

Consolidated Abuelo Cases filed in
2013:

:

:
:

Judge Marbley

:

v.

2:13-cv-0124
2:13-cv-0125
2:13-cv-0126
2:13-cv-0127
2:13-cv-0129
2:13-cv-0130
2:13-cv-0131
2:13-cv-0132
2:13-cv-0133
2:13-cv-0134

Magistrate Judge Abel

:

Food Concepts International, LP, et al. ,
Defendants

:
:
:

(Miller)
(Crozier)
(Coleman)
(Gibbs)
(Johnson)
(Troyer)
(Autrey)
(Tigner)
(McEldowney)
(Keegan)

Order and
Report and Recommendation
My October 18, 2013 Status and Scheduling Conference Order required the plaintiffs
in 2:13-cv-0124, 2:13-cv-0125, 2:13-cv-0126, 2:13-cv-0127; 2:13-cv-0129, 2:13-cv-0130, 2:13-cv0131, 2:13-cv-0132, 2:13-cv-0133, and 2:13-cv-0134 to show cause why their lawsuits should
not be dismissed with prejudice for failure to file complaints meeting the notice requirements of Rule 8(a), Fed. R. Civ. P., and failing to comply with the October 3, 2013 Order, the
March 25 Agreed Order that an amended complaint be filed by March 27, 2013, the April
25, 2013 Scheduling Order that an amended complaint be filed on or before May 17, 2013,
and the July 2, 2013 Scheduling Conference Order that an amended complaint be filed on
or before July 16, 2013. Plaintiffs have filed their responses to the show cause order. The

responses include plaintiffs’ counsel’s explanation about why the complaints filed October
15, 2013 did not contain factual allegations regarding the individual plaintiffs’ claims that
met the fair notice requirement of Rule 8(a), Fed. R. Civ. P. However, plaintiffs’ responses
contain no explanation or argument explaining how the tendered amended complaints
provide the individual defendants with fair notice of the claims asserted against them.1
Attached to each plaintiff’s response is yet another version of the amended complaint.
Defendants filed a response November 4, 2013 in Autrey v. Food Concepts Int’l, et al., 2:13-cv131, Doc. 35. First, I will determine whether plaintiffs’ counsel’s explanation of why the
amended complaints filed October 15 did not meet Rule 8(a)’s fair notice requirement
amounts to excusable neglect, then I will consider and decide whether these complaints
satisfy the fair notice requirements of Rule 8(a).
I. Excusable neglect
The affidavits submitted by plaintiffs’ counsel assert that between October 9 and
October 11 Wesley T. Fortune created one master complaint file on his laptop computer
that contained a complaint common to all plaintiffs, individual causes of action for each,
and “to the extent necessary, the detailed allegations for each plaintiff.” (Wesley T. Fortune,
October 24, 2013 Affidavit, ¶ 3, Joseph Miller v. Food Concepts Int’l, et al., 2:13-cv-124, Doc 33,

1

The individual defendants are Mark Myers, Darren Del Vecchio, and John Doe.
Plaintiffs have never identified the John Doe defendant. They have failed to serve summons and complaint on the John Doe defendant within 120 days of filing their original
complaints as required by Rule 4(m), Fed. R. Civ. P.
2

PageID 310-11.)2 Although Fortune asserts that the master complaint file contained
all the information needed to create individual amended complaints for each plaintiff, “due
to an ID 10 T error3, the master complaint was never saved by me . . . .” (Id.) In the late
afternoon of October 15, Fortune asked his legal assistant to populate the ten individual
complaints. She could not find the current version of the master complaint on the office
computer system. (Id., ¶¶ 6-8; Kara Weiser Fortune’s October 24, 2013 Affidavit, ¶¶ 2-5.)
With only 4-5 hours remaining to file the complaints by the October 15 deadline, Fortune
and his legal assistant hurriedly put together the individual amended complaints from the
files available on the office network. (Wesley Fortune Affidavit., ¶¶ 9-12; Kara Fortune
Affidavit., ¶ 6.) The next day, Stephen C. Oberhousen, an employee of Fortune’s law firm’s
professional services support company, “recovered an auto-saved recovery version of the
master complaint document.” (Stephen C. Oberhousen’s October 24, 2013 Affidavit, ¶ 3.)
He explained that “Mr. Fortune’s failure to actively save a copy of the master complaint
document on October 9, 2013 led to the document being autosaved in the cache recovery

2

The same affidavits were filed in each plaintiff’s response to the show cause
order. For ease of reference, I will cite to the docket in Joseph Miller v. Food Concepts Int’l,
et al., 2:13-cv-124 when quoting from or relying on information contained in them.
Unless otherwise indicate, all citations to case documents will be to the docket in Miller,
2:13-cv-124.
3

Defendant’s November 4 Response states: “Cursory internet research . . . reveals that ID10T is an alpha numeric expression of “Idiot,” and the error code is evidently used as a jab against computer users. (Wikipedia, Urban Dictionary).” (Doc. 35,
PageID 350.) Mr. Fortune confirmed that explanation during the November 8 telephone
conference, stating that he used the term as “a joke reflecting his frustration with himself.” (November 12, 2013 Status and Scheduling Conference Order, p. 2, Miller v. Food
Concepts Int’l, et al., 2:13-cv-124, Doc. 32, PageID 302.)
3

drive.” (Id., ¶ 6.)
Defendants point out that Oberhousen does not set out his computer forensics
qualifications and that his affidavit does not explain what a cache recovery drive is and
how it functions. Further, the affidavits do not address whether there were paper copies of
any version of the master amended complaint file or whether copies of the file were emailed to others working on the case. Additionally, defendants point out, after discovering the
master complaint file on October 16, plaintiffs’ counsel took no steps to populate the
individual complaints or to let the court and opposing counsel know about the problem
locating the file, nor did he proceed to tender the allegedly unsaved but now located
amended complaints to the court. Defendants argue that given that Fortune waited until
mid-afternoon October 15 to begin creating the individual complaints, he should have been
able to accomplish that task on October 16 and certainly by the October 18 telephone
conference with the magistrate judge. Defendants surmise from the affidavits that the
whole problem appears to be that Fortune saved the file in a folder that could not be
located on his paralegal’s computer. (November 4 Response, 2-4, Doc. 35, above, PageID
350-52.)
While I find it difficult to understand how Fortune could work on an important
document over a period of three days and fail to save a copy of it to either his laptop or his
office computer network and not print a copy or email it to others working on the case, I
accept the factual representations made in the three affidavits and conclude that plaintiffs
have established excusable neglect as the cause of their hurriedly filed amended complaints

4

not satisfying the fair notice requirement of Rule 8(a), Fed. R. Civ. P. Accordingly, I now
turn to the consideration of whether the amended complaints attached to plaintiffs’
responses to the October 18, 2013 show cause order provide defendants with fair notice of
their claims.
II. Do the tendered amended complaints satisfy court’s previous orders and the fair
notice requirement of Rule 8(a)?
Plaintiffs’ responses to the October 18 Order does not address whether the tendered
amended complaints satisfy the court’s previous order and Rule 8(a)’s fair notice requirement. During the November 8, 2013 telephone conference with me, plaintiffs’ counsel
argued:
Plaintiffs have real claims that have merit. The tendered complaints state
claims for relief under Rule 8(a), Fed. R. Civ. P. In preparing them, Mr. Fortune tried to eliminate all extraneous allegations. All of the allegations in the
individual complaint are related to and/or impacted that plaintiff. By the
nature of the claims, e.g., hostile work environment, there is some factual
overlap in the facts supporting each plaintiffs’ claims.
(November 12, 2013 Status and Scheduling Conference Order, p. 2, Joseph Miller v. Food
Concepts Int’l, et al., 2:13-cv-124, Doc. 32, PageID 302.) Defendants’ counsel maintained that
the tendered amended complaints fail to meet the pleading standards of Rule 8(a) for the
reasons set out in their November 4, 2013 reply to plaintiffs’ response to the October 18
Order. (November 4, 2013 Defendants’ Reply, 5-10 and 12-15, Rachel Autrey v. Food Concepts
Int’l, et al., 2:13-cv-131, Doc. 35, PageID 353-58 and 360-63.) In that response, defendants
argued that the tendered amended complaints are just another in a long line of last minute

5

maneuvers by plaintiffs’ counsel that fail to comply with the court’s many orders directing
plaintiffs to file complaints meeting the requirements of Rule 8(a). Once again, the complaints are nearly identical, make conclusory assertions, and contain insufficient factual
allegations about the individual plaintiffs to satisfy Rule 8(a).
Early on, counsel indicated that their clients were interested in attempting to resolve
these disputes by settlement. Defendants did not want to proceed to mediation without
having some additional information about the claims asserted by each defendants and the
factual basis for those claims. My March 12, 2013 Order noted that the complaints in these
cases were virtually identical and required plaintiffs’ counsel to provide defendants’ counsel with an individualized statement of the claims against each defendant, including the
dates the actionable conduct allegedly occurred. (March 12, 2013 Scheduling Conference
Order, p. 2, Miller, above, Doc. 9, PageID 74.) The cases were noticed for mediations to be
held with me April 22-24, 2013. (April 18, 2013 Order Miller, above, Doc. 15, PageID 94.)
After the first day, the mediations were called off. On April 25, 2013, I said that “[f]rom my
perspective, a barrier to making any significant progress in the mediation was defendants’
concern that they did not know enough about the particulars of the individual plaintiff’s
claim to fully evaluate the cases for settlement.” (April 25, 2013 Scheduling Conference
Order, p. 1, Miller, above, Doc. 16, PageID 96.) I ordered plaintiffs to provide individual
complaints that met the requirements of Rule 8(a), Fed. R. Civ. P. (Id., pp. 2-4, PageID 9799.)
On July 1, 2013, plaintiffs were ordered to file a motion for leave to file an amended

6

complaint on or before July 16. (July 2, 2013 Scheduling Conference Order, p. 1, Miller,
above, Doc. 20, PageID 115.) On July 19, they filed a motion for leave to file amended
complaints. (Id., Doc. 22.) On October 3, 2013, I issued orders granting, in part, the motions
for leave to amend and requiring plaintiffs to remove allegations concerning other
employees and re-file revised amended complaints within ten days.
Rule 8(a)’s requirements for pleadings. A complaint must give defendants fair notice
of the claims a plaintiff makes against them and the grounds on which those claims rest.
Rule 8(a), Fed. R. Civ. P.; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although
Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” it is not true that notice pleading means that a complaint need
plead no facts. The form complaints appended to the Federal Rules of Civil Procedure all
include basic facts, such as the date the actionable event(s) took place and a brief description of them. E.g., Forms 9-14 and 17.
In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1349-50 (2009), the United States Supreme Court
further articulated the Twombly Rule 8(a) test and the requirement that a complaint plead
sufficient facts to state a plausible claim for relief:
As the Court held in Twombly, 550 U.S. 544 (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,(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or
"a formulaic recitation of the elements of a cause of action will not do." 550
U.S., at 555. Nor does a complaint suffice if it tenders "naked assertion[s]"
devoid of "further factual enhancement." Id., at 557.
To survive a motion to dismiss, a complaint must contain sufficient factual
7

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. Ibid. 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 (brackets omitted).
Two working principles underlie our decision in Twombly. First, the tenet
that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice. Id.
at 556. (Although for the purposes of a motion to dismiss we must take all of
the factual allegations in the complaint as true, we "are not bound to accept as
true a legal conclusion couched as a factual allegation" (internal quotation
marks omitted)). Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss. Id., at 556. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. 490 F.3d, at 157-158. But where the wellpleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged--but it has not "show[n]"--"that the
pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.
The Supreme Court went on to hold that a prisoner who pleaded that defendants "’knew
of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of
confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national
8

origin and for no legitimate penological interest,’" that a high-ranking official “was the
‘principal architect’ of this invidious policy,” “and that [another high-ranking official] was
‘instrumental’ in adopting and executing it,” failed to plead more than “bare assertions”
that “amount[ed] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim,” and that such conclusory allegations were “not entitled to
be assumed true.” Iqbal, 129 S.Ct. at 1951.
Overview of tendered amended complaints. The “Introduction” and “Parties” sections are identical. The “Background and Allegations” sections run from ¶¶ 17 to 164 or 166
and, with a few variations, contain identical language paragraph-by-paragraph. The
“Causes of Action” use identical or substantially identical language, but not all plaintiffs
plead the same number of claims. The “Prayer for Relief” sections are identical.
Using the tendered amended complaint in Joseph Miller v. Food Concepts Int’l, et al.,
2:13-cv-124, Doc. 33, 17-62, PageID 319-64, as illustrative, each of the tendered amended
complaints include the following:
C Defendant Darren Del Vecchio’s role and authority as General Manager of
Abuelo’s Easton, from April 5, 2010 until he was fired January 12, 2011, ¶¶ 22-29;
C Defendant Mark Myers was Del Vecchio’s supervisor, ¶ 29;
C Bill Richardson was Myers’ supervisor and exercised control over plaintiffs’
hiring, employment, and firing, ¶¶ 31-34;
C Del Vecchio required plaintiffs to engage in discriminatory seating areas for
customers based on ancestry, color, national origin, race or religion, ¶¶ 36-46, 54,

9

72-73, and 155-58;
C Del Vecchio assigned employees to certain areas of the restaurant based on
ancestry, color, national origin, race or religion, ¶¶ 36-40, 47-49, 72-73, 104, and
112;
C Lifestyle targeted employees described and identified, ¶ 504;
C Del Vecchio retaliated against certain employees, ¶ 515;

4

Paragraph 50 reads:
Lifestyle Targeted Employees include but are not limited to AfricanAmerican female employee who is married to an African-American and
has African-American children, Komekeo Coleman; Caucasian male
employee who engages in sexual relations with other males and engages
in sodomy with other males, Teddy Crozier; Caucasian male employee
who engages in sexual relations with other males and engages in sodomy
with other males, Joseph Miller; African-American male who dates Caucasian females, Mark Smith II; African-American male who engages in
sexual relations with other males and engages in sodomy with other
males, Justin Sowell; Caucasian female who dates an African-American
male and has Caucasian-African- American child, Stephanie Swint;
Caucasian female who dates African-American males, Angie Tigner;
Caucasian male employee who engages in sexual relations with other
males and engages in sodomy with other males, Lukus Troyer; and
Caucasian male employee who engages in sexual, relations with other
males, engages in sodomy with other males, and who dates AfricanAmerican males, Nickolas Valentine.
5

Paragraph 51 reads:
Beginning on or about April 5, 2010 and continuing until January 12, 2011,
Defendant Del Vecchio, as witnessed by Rachel Autrey and Mr. Pauwels,
retaliated against certain Abuelo's Easton employees because they opposed the unlawful discriminatory practices of Defendants, made a charge
against Defendants, testified against Defendants, and/ or participated in
an investigation, proceeding, or hearing concerning Defendants unlawful
discriminatory acts, (hereinafter "Retaliated Against Employees").
10

C Retaliated against employees described and identified, ¶ 526;
C Injuries suffered by retaliated against employees, ¶¶ 53-63;7
C Del Vecchio’s offensive comments and jokes, ¶¶ 66-69 and 114;
C Defendants had knowledge of Del Vecchio’s retaliatory and offensive conduct, ¶¶
71-73;
C Supervisors with power to discipline and their failures to investigate and/or
discipline, ¶¶ 74-95, 114-18, 147-59;

6

Paragraph 52 reads:
Retaliated Against Employees include but are not limited to Caucasian
female employee, Rachel Autry; African-American female employee who
is married to an African-American and has African-American children,
Komekeo Coleman; Caucasian male employee who engages in sexual
relations with other males and engages in sodomy with other males,
Teddy Crozier; Caucasian male employee, Eric Gibbs; Caucasian female
employee, Stacie Johnson; Caucasian female employee, Jamie Keegan;
Caucasian male Assistant General Manager, Edward Linihan; Caucasian
female employee, Amanda McEldowney; Caucasian male employee who
engages in sexual relations with other males and engages in sodomy with
other males, Joseph Miller; African-American male who dates Caucasian
females, Mark Smith II; African-American male who engages in sexual
relations with other males and engages in sodomy with other males, Justin
Sowell; Caucasian female who dates an African-American male and has
Caucasian-AfricanAmerican child, Stephanie Swint; Caucasian female
who dates African-American males, Angie Tigner; Caucasian male employee who engages in sexual relations with other males and engages in
sodomy with other males, Lukus Troyer; and Caucasian male employee
who engages in sexual relations with other males, engages in sodomy
with other males, and who dates African-American males, Nickolas
Valentine.
7

Paragraph 53 reads:
Collectively, the Race Targeted Employees, Lifestyle Targeted Employees,
and Retaliated Against Employees will be referred to as the ‘Defendants'
Targeted Employees’.
11

C Abuelo’s Easton’s GM Lucanin advised plaintiffs Coleman, Gibbs, Keegan,
McEldowney, Miller, Smith and Troyer “that they needed to ‘be looking for other
employment’ because when these matters resolved their employment would be
terminated,” ¶ 96 and ¶¶ 97 and 166;
C Del Vecchio and other supervisors were never investigated or disciplined for their
conduct, ¶¶ 98-103, 105, 124-40, 149-51, 159, and 161;
C Del Vecchio told to get rid of the “bad seed,” ¶¶ 106-08 and 110;
C General allegation of hostile work environment, ¶¶ 113 and 160;
C Defendants aided and abetted Del Vecchio in his wrongful acts of discrimination,
¶¶ 121-40; and
C FLSA claims allegations, ¶¶ 142-44 and 153-54.
Plaintiff Rachel Autrey’s deposition. The only information plaintiffs offered in support of their tendered amended complaints in their responses to the show cause order is the
transcript of Rachel Autrey’s October 9, 2013 deposition in Mark Smith v. Food Concepts Int’l,
Case No. 12 CV 7144 (Franklin County Common Pleas Court). (Plaintiff’s October 25, 2013
Response, Autrey, above, Doc. 34, PageID 331-48.) The deposition was taken “prima-rily in
connection with Mark Smith’s lawsuit,” (Id., Tr. 11:15-18, PageID 333), but she was also
questioned more generally about defendant Del Vecchio’s conduct toward other employees. (Id., Tr. 40-45 and 58, PageID 340-42 and 345.)
Autrey testified that Mark Smith was one of the employees on Del Vecchio’s “hit list
or bad seed list . . . .” (Id., Tr. 14:13-17, PageID 334.) She could not recall when Del Vecchio

12

talked with her about the list. (Id., Tr. 17:23-18:6, PageID 333.)
Autrey gave the following testimony relevant to the allegations in the tendered
amended complaint that Del Vecchio required plaintiffs to engage in discriminatory seating
areas for customers based on ancestry, color, national origin, race or religion, ¶¶ 36-46, 54,
72-73, and 155-58, and assigned employees to certain areas of the restaurant based on
ancestry, color, national origin, race or religion, ¶¶ 36-40, 47-49, 72-73, 104, and 112.
(Tendered Amended Complaint, Autrey, above, Doc. 34, PageID 293-96, 302, 307-09, and
318-19.) Assignments to seating areas were made by the manager on duty:
The manager on duty would make a seating chart and then the shift leads
would be first and they would get the booths, which is the more desirable
section to be in, and then from there, Darren [Del Vecchio] especially would
seat certain people at–there’s a couple sections that people just aren’t going to
make money at. The high-tops that Mark Smith was assigned never actually
was a section until Darren came in and made it a section. The bartenders used
to take over that.
(Id., Tr. 18-19, ll 20-5, PageID 335) A section in the back and seating close to the host stand
or the bathrooms were also undesirable. (Id., Tr. 19:9-20:2, PageID 335) Autrey further
testified that Del Vecchio seated customers in sections by race:
[I]t depended on the clientele that would come in, too, where they were supposed to sit. So if you are white, you go to a white section. If you are black or
some other race, then you might go to one of the other sections and you
would be out of rotation. And it just depended on who came in whose section
you would go to.
...
So it depended on who would come in, where they would go. So if you were
white, you would go to a white server; if you were black or Indian or any
other race, then you would go to, you know, their not white section, like black
section I guess is the way he would look at it. And then that section of course
obviously was one of the, not sections that people normally wanted to sit at
either anyway, because that’s how he would do the rotation.
13

...
. . . [I]f you were perceived to be on team Darren’s team8, then he would give
you a better section or he wouldn’t put you in the less desirable section, but if
he had a problem with you of some sort, then you could get one of the sections that we talked about, whether it’s in the dungeon or the bar or one of
the sections toward the courtyard towards in front.
(Id., Tr. 20:7-14 and 25:24-26:19, PageID 335 and 336-37.) That didn’t mean that nonwhite
guests never sat in booths when Del Vecchio was controlling where patrons were seated
because there was a server rotation.9 (Id., Tr. 26:1-5, PageID 337.) Nonetheless, the majority
of the time Del Vecchio wanted white guests to go to white servers, and he would sometimes personally seat guests at a table that was out of the server rotation. (Id., Tr. 27:8-28:3,
PageID 337.) There were times Del Vecchio would come to Autrey “and say, okay, these
people are black and they come in, they need to go sit with Mark Smith; these people are
white, so they need to sit with Jade or Stacie Johnson.” (Id., Tr. 29:20-30:4, PageID 338.)
However, Autrey was unable to remember what specifically Del Vecchio said or when he
gave these directions. (Id., Tr. 31:5-14, PageID 338.) She did at one point go back to the
office and yell at Del Vecchio, complaining about his hovering about her at the host station,
making comments that made her uncomfortable, and interfering with the rotation, which

8

Autrey testified there was no team Darren. Del Vecchio thought of it as the
people he believed were on his side, like her (before she yelled at him) and Stacie
Johnson. It was a small number of employees who weren’t on his hit list. (Id., Tr. 46:215, PageID 342.) Del Vecchio saw it as team Darren versus team Ed [Linihan]. Linihan
was an assistant manager who had been at Abuelo’s Easton longer than Del Vecchio
and who had wanted the general manager job when Del Vecchio got it. Del Vecchio
wanted the restaurant to become totally team Darren. (Id., Tr. 47:2-48:25, PageID 342.)
9

The rotation started with the two lead servers, then the remaining servers in the
order in which they arrived at work. (Id., Tr. 26:6-14, PageID 337.)
14

caused the servers to complain to her. Assistant Manager Ed Linihan was in the office
when Autrey confronted Del Vecchio. (Id., Tr. 32:18-33:15, PageID 338-39.)
The seating rotation depended on the manager on duty. (Id., Tr. 21:1-2, PageID 336.)
A few times Del Vecchio told Autrey that he was mad at somebody and that he was going
to punish them by giving them a poor seating assignment, (Id., Tr. 23:11-20, PageID 336),
but she could not recall who he punished this way. (Id., Tr. 23:21-24:3, PageID 336.)
Autrey testified that Del Vecchio made comments about some servers that made her
uncomfortable. He mimicked the way Justin stood and talked, calling him a monkey and
some kind of queen. He made the comments more than once or twice. (Id., Tr. 33:14-34:25
and 37:2-38:12, PageID 339.) When asked about inappropriate comments “Del Vecchio
made with regard to race, religion, sex, national origin, sexual orientation, preference for
partners who were of a different race, anything like that about any other employee,” (Id.,
Tr. 40:24-41:5, PageID 340-41), Autrey testified:
He especially didn’t like Nick and that’s when he started talking about the
Bible because he didn’t believe in male and male sexual contact. . . .
...
He didn’t agree with a black and a white person dating or being together
either. . . . [T]here was one time that a black and white couple came in and he
made a comment about how . . . he didn’t believe that was correct because the
Bible said, and at that point, that’s when I would just ignore him and zone out
....
(Id., Tr. 41:7-42:10, PageID 341.) These types of comments were “a normal thing for him.”
(Id., Tr. 42:19-21, PageID 341.)
Autrey never complained to Del Vecchio’s supervisors or anyone else higher up in
Abuelo’s about Del Vecchio’s objectionable conduct. (Id., Tr. 49:4-52:6, PageID 343.)
15

Individual plaintiff’s tendered amended complaints. I will now turn to the allegations pleaded in each of the tendered amended complaints.
Joseph Miller (2:13-cv-124).
Plaintiff-specific facts. The factual allegations relating directly to Miller are as
follows:
C Dates of employment. Caucasian male, ¶ 18;
C Never disciplined at Abuelo’s, ¶ 19;
C Miller’s job is server, ¶ 20;
C Del Vecchio was Miller’s supervisor, ¶ 24;
C Miller was at all times qualified for and successfully performing his job duties, ¶
35;
C Miller is a “Caucasian male employee who engages in sexual relations with other
males and engages in sodomy with other males . . . ,” ¶ 50;
C Del Vecchio retaliated against Miller and 14 other employees, ¶¶ 51-52;
C Miller was advised that he “needed to ‘be looking for other employment’ because
when these matters resolved [his] employment would be terminated,” ¶¶ 96 and
166;
C Plaintiff was a non-exempt employee who was paid by the hour on a biweekly
basis, ¶ 141;
C Beginning in April 2010, Miller and 13 other plaintiffs “voiced allegations and
complaints about Defendants’ wrongful and discriminatory actions and inactions

16

. . . ,” ¶ 148; and
C In December 2011, Del Vecchio constructively terminated Miller’s employment, ¶
165.
Miller’s claims. His tendered amended complaint pleads seven claims. It pleads an
FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, his amended complaint pleads:
. . . (III) Retaliation-Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation - 42 U.S.C. §1981, (V) Aiding, Abetting and
Interference - Discrimination in Violation of O.R.C. §4112.02(1) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion - Harassment-Hostile
Work Environment, and (VII) Retaliation - Discrimination - Harassment Loss of Tangible Job Benefits.
Tendered Amended Complaint, ¶ 4, Doc. 33, PageID 320.
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract.
October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. Section 4112.02(J) provides:
For any person to aid, abet, incite, compel, or coerce the doing of any act
declared by this section to be an unlawful discriminatory practice, to obstruct
or prevent any person from complying with this chapter or any order issued
under it, or to attempt directly or indirectly to commit any act declared by
this section to be an unlawful discriminatory practice.
In CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008), the Supreme Court held that §
1981(a) “encompasses a complaint of retaliation against a person who has complained

17

about a violation of another person's contract-related ‘right.’” Id. at 445. To make a prima
facie showing of retaliation, plaintiff must show that (1) he engaged in protected activity,
(2) the activity was known to the defendant, (3) plaintiff was subjected to materially adverse action, and (4) there was a causal connection between the protected activity and the
adverse action. Harris v. Metropolitan Government of Nashville and Davidson County, Tenn.
594 F.3d 476, 485 (6th Cir. 2010).
The tendered amended complaint contains a bare bones statement of these claims:
[O.R.C. § 4112.02(I) and O.R.C. § 4112.99]
183.
The Plaintiff incorporates by reference all of the foregoing paragraphs
of this Complaint as if fully set forth herein.
184.

Defendants’ various acts and omissions directed towards Plaintiff
constitute retaliation and retaliatory harassment in violation of O.R.C.
4112.02(I) and O.R.C. 4112.99.

185.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

186.

Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.

[Retaliation- 42 U.S.C. §1981]
187.
The Plaintiff incorporates by reference all of the foregoing paragraphs
of this Complaint as if fully set forth herein.
188.

Defendants’ various acts and omissions directed towards Plaintiff
constitute retaliation and retaliatory harassment in violation of 42 U.S.C.
§1981.

189.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

190.

Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.

18

(October 25, 2013 Response, Miller, above, Doc. 33 PageID 322-23.) There is no indication of
the nature of plaintiff Miller’s protected activity, the act(s) of retaliation for that activity, the
defendant(s) who retaliated, the date(s) Miller engaged in protected activity and the date(s)
the defendant(s) retaliated, or the like. While the claims reference all of the para-graphs
that proceed them in the complaint, a reading of the “Background and Allegations” section
of the complaint does not answer any of these questions. The only arguably relevant factual
allegation is that beginning in April 2010 Miller and 13 other plaintiffs “voiced allegations
and complaints about Defendants’ wrongful and discriminatory actions and inactions . . . .”
¶ 148. No helpful time frame is given, the nature of the complaints is not stated, and the
person to whom the complaints were made is not identified. Further, nowhere in the tendered amended complaint does it allege which defendant took what action when to retaliate for Miller’s engaging in protected activity. In short, the tendered amended complaint
fails to give defendants fair notice of the retaliation claims asserted against them.
Aiding, Abetting and Interference - Discrimination in Violation of O.R.C. §4112.02(J).
The tendered amended complaint alleges:
197.

Plaintiff was discriminated against because, not later than July 29,
2010, she [sic] orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio in the presence of Mr.
Linihan and participated in an investigation, proceeding, or hearing
concerning Defendant Del Vecchio’s unlawful discriminatory acts.

198.

If Plaintiff had not orally voiced her [sic] opposition to the unlawful
discriminatory practices of Defendant Del Vecchio, Plaintiff would not
have been discriminated or retaliated against.

199.

As a result of Defendant Del Vecchio’s wrongful acts and discriminatory acts, the average hourly tip-shared component of Plaintiff’s
19

hourly wage was substantially reduced.
200.

As a result of Defendant Del Vecchio’s wrongful acts and discriminatory acts, Plaintiff’s ability to continue successfully completing her [sic]
job assignments became considerably more difficult.

201.

As a result of Defendant Del Vecchio’s wrongful acts and discriminatory acts, Defendant Targeted Employees, excluding Plaintiff, began
complaining to Plaintiff about section or area assignments and the unbalanced rotation and the customer and section assignments.

202.

As a result of Defendants actions and inactions, Plaintiff lost wages
she would have earned but-for Defendants wrongful discriminatory
actions and inactions.

203.

The financial and emotional harms suffered by Plaintiff were a direct
and proximate result of various acts and omissions of Defendants.

204.

The Plaintiff is a member of a protected group by virtue of her having
opposed the wrongful acts of Defendants as provided under R.C.
§4112.02(A) and (I).

205.

The Plaintiff was an “employee” as R.C. §4112.01(3) defines that term.

206.

Defendants are “employer” as R.C. §4112.01(A)(2) defines that term
because Defendants employ four or more persons within the state and
Defendants Myers and Del Vecchio were acting directly or indirectly in
the interest of an employer.

207.

Defendants subjected Plaintiff to and/or condoned harassment, discrimination, and retaliation, which conduct embarrassed, humiliated,
and intimidated Plaintiff.

208.

Defendants’ discriminatory conduct was motivated by Plaintiff’s
opposition and participation in a race, gender, and retaliation proceeds
or investigation.

209.

Defendants’ various discrimination acts and omissions created and
perpetuated a hostile workplace environment of harassment,
discrimination, and retaliation that a reasonable person would find to be
hostile, intimidating, offensive and abusive.

20

210.

Plaintiff was offended by the harassment, discrimination, and retaliation and, further, perceived the workplace environment created and
perpetuated by Defendants to be hostile, intimidating, offensive and
abusive.

211.

Defendants creation of a hostile workplace environment of harassment, discrimination, and retaliation altered the conditions of Plaintiff’s
employment with Defendant Abuelo’s Int’l.

212.

Plaintiff and other employees reported the hostile work environment
to her supervisor but no corrective action was taken.

213.

Plaintiff’s lost in income, reduced work hours, and loss of benefits
was motivated, in whole or in part, in retaliation for Plaintiff’s participation in, opposition to and reporting of Defendants’ wrongful discriminatory acts and omissions.

214.

Defendants’ conduct violates R.C. § 4112.02 and § 4112.99, which prohibits harassment and adverse employment actions against employees
on the basis of an employee’s participation in or filing of or in opposition
to Defendants’ wrongful discriminator acts and inactions, and entitles
Plaintiff to damages.

215.

Defendants’ illegal, discriminatory conduct, including but not limited
to the creation of a hostile work environment, have seriously affected
Plaintiff’s psychological well-being.

216.

As a direct and proximate result of Defendants’ discriminatory actions and omissions complained of herein was intentional, motivated by
malice and ill will and/or done with reckless disregard of Plaintiff’s
rights, thereby entitling Plaintiff to recover punitive damages.

217.

Defendants’ various acts and omissions directed towards Plaintiff
constitute discrimination – aiding, abetting and interference in violation
of O.R.C. 4112.02(J) and O.R.C. 4112.99.

218.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

219.

Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.
21

(Id., PageID 356- 360.)
These allegations don’t make any sense. First, the plaintiff is referred to as “she”,
and the structure of the claims suggests that the plaintiff referred to is Autrey, not Miller.
Second, Miller is a server who the complaint alleges was a targeted employee, yet this
claim alleges that the “Defendant Targeted Employees10, excluding Plaintiff, began complaining to Plaintiff about section or area assignment and the unbalance rotation and the
customer and section assignments.” (Id., ¶ 201, PageID 358.)(Emphasis added.)
The claim further alleges that plaintiff is a member of a protected group, but fails to
allege which group. It alleges he opposed defendants’ wrongful acts, but does not identify
those acts, the defendant(s) committing them, when the act(s) were committed, nor does it
allege how and when Miller opposed those acts. (Id., ¶ 204, PageID 358.) It alleges that
defendants’ actions created a hostile work environment, but alleges no facts supporting
that claim. (Id., ¶ 209, PageID 358.) It alleges that he was “offended by the harassment,
discrimination, and retaliation . . . ,” but pleads no facts giving notice of what conduct
directed at him amounted to harassment, discrimination, and retaliation, who engaged in
that conduct, and when it took place. Once again, the claim fails to give defendants fair
notice of their alleged actionable conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National
Origin, Race or Religion-Harassment-Hostile Work Environment. The tendered amended

10

The term “Defendant Targeted Employees” refers to plaintiffs who were
“targeted” by defendants to be subjected to discrimination or retaliation.
22

complaint alleges:
220.

The Plaintiff incorporates by reference all of the foregoing paragraphs
of this Complaint as if fully set forth herein.

221.

Defendants’ have subjected Plaintiff to a hostile work environment
based upon race, gender, and in retaliation for her opposition to Defendants’ various discriminatory acts and omissions and her participation in
proceedings alleging charges of race, gender, and retaliation discrimination in violation of O.R.C. 4112.02 and O.R.C. 4112.99.

222.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

223.

Defendants’ actions have been so egregious so as to warrant the imposition of punitive damages.

224.

Because Plaintiff’s complaints of harassment motivated Defendants to
reduce the hours she [sic] was paid for, reduce the hours she [sic] was
scheduled to work, and reduce her [sic] overall benefits, Defendants
violated Ohio law.

225.

Defendants acted with malice and ill will toward Plaintiff and without
regard for her [sic] legal rights in withholding pay for hours she [sic]
worked, reducing the number of hours she was allowed to work, and
reducing her overall benefits and otherwise discriminating against her
with regard to tenure, terms, conditions, or privileges of employment,
and other matters directly or indirectly related to her employment.

226.

Defendants’ conduct violates R.C. Chapter 4112.

227.

Defendants did not exercise reasonable care to prevent harassment.

228.

Plaintiff notified Defendants of the harassment.

228.

Defendants did not promptly correct the harassing behavior once
notified by Plaintiff and the other employees.

230.

As a direct and proximate result of Defendants’ actions as set forth
above, Plaintiff has suffered:
a. Loss of wages;
b. Loss of benefits;
23

c. Loss of other fringe benefits;
d. Loss of the opportunity to be able to continue the gainful employ in which
she [sic] had been engaged;
e. Loss of future earnings and front-pay;
f. Loss of reputation; and
g. Humiliation, embarrassment, and loss of self-esteem;
h. Loss of time and money in endeavoring to protect her [sic] from
Defendants’ unlawful discrimination, including cost and reasonable
attorney’s fees of this action.
(Id., PageID 360-61.)
Although this claim alleges that defendants subjected plaintiff to a hostile work
environment based upon race, gender, and in retaliation for her [sic] opposition to Defendants’ various discriminatory acts and her [sic] participation in proceedings alleging charges
of race, gender, and retaliation discrimination . . . ,” Miller is a male Caucasian. Further, the
proposed amended complaint does not identify what Miller did to oppose defendants’
discriminatory acts, nor does it allege what those acts were or when they occurred. Grasping at straws, I hazard the guess that this claim refers to the allegations that Del Vecchio
seated customers by ancestry, color, national origin, race or religion and that he had Caucasian servers serve Caucasian customers and non-Caucasian servers serve non-Caucasian
customers. However, the “Background and Allegations” section of the tendered amended
complaint contains no factual allegations about Del Vecchio’s conduct toward Miller
regarding his server assignments other than the conclusory allegation that he, together with
eight others, was a targeted lifestyle employee. (Id., ¶¶ 50 and 52, PageID 329-30.) There is
no allegation that on a certain date or during a certain period of time Del Vecchio assigned
Miller to serve certain tables because of his race or gender or with some other

24

discriminatory animus. Nor is there an allegation that on certain dates or during a certain
period of time Del Vecchio assigned or caused Miller to be assigned to tables that yielded
him lower tips than other non-lead servers or that he earned less than those servers.
Each plaintiff must plead and, at trial, prove his or her claims for relief against each
defendant. A conclusory allegation that Del Vecchio was a bad manager who made racially
and lifestyle insensitive and hurtful comments and violated discrimination and public
accommodations laws is not enough. The complaint must say what Del Vecchio and/or the
other named defendants did to harm Miller in violation of Ohio or federal law. As pleaded,
the tendered amended complaint fails to do that as to this claim.
Retaliation - Discrimination - Harassment - Loss of Tangible Job Benefits. The
tendered amend complaint alleges:
230.

The Plaintiff incorporates by reference all of the foregoing paragraphs
of this Complaint as if fully set forth herein.
231.
Defendants various acts and omissions towards plaintiff constitute
retaliation and retaliatory harassment in violation of O.R.C. 4112.02(I)
and O.R.C. 4112.99.
232.
As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.
233.
Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.
(Id., PageID 361-62.)
As discussed above, the tendered amended complaint fails to provide any defendant
fair notice of what he did to retaliate against or harass Miller. There are no allegations
about Miller’s protected conduct, any defendant’s retaliatory actions, or the dates on which
these occurred.

25

Rachel Autrey (2:13-cv-131).
Plaintiff-specific facts. The factual allegations relating directly to Autrey are as
follows:
C Dates of her employment. Caucasian female, ¶ 18;
C Never disciplined, ¶ 19;
C Del Vecchio was her supervisor, ¶ 24;
C Plaintiff was at all times qualified for and successfully performing her job
duties, ¶ 35;
C Del Vecchio required Autrey to separate customers and Abuelo’s employees serving them by ancestry, color, national origin, race or religion, ¶¶ 43,
45-47;
C Autry is a Caucasian female and one of 15 employees defendants unlawfully retaliated against, ¶¶ 51-52;
C Autrey told Del Vecchio she didn’t agree with his discriminatory method
of seating guests and assigning sections to servers, ¶¶ 64-65;
C Plaintiff was a non-exempt employee and was paid by the hour on a biweekly basis, ¶ 141; and
C “Beginning on or about April 2010, [Autrey and 13 other employees] voiced allegations and complaints about Defendants wrongful and discriminatory actions and inactions . . . ,” ¶ 148.
(Id., PageID 290-91, 294-95, 300-01.)

26

Autrey’s claims. Her tendered amended complaint pleads six claims. It pleads an
FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, her tendered amended complaint pleads claims for:
. . . (III) Retaliation - Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation - 42 U.S.C. § 1981, (V) Aiding, Abetting and
Interference - Discrimination in Violation of O.R.C. §4112.02(J) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion - Harassment - Hostile
Work Environment.
(Tendered Amended Complaint, ¶ 4, October 25, 2013 Response, Autrey v. Food Concepts
Int’l, 2:13-cv-131, Doc. 34, PageID 287.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract.
October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. The tendered amended complaint sets out these
claims at ¶¶ 182-89. (October 25, 2013 Response, Rachel Autrey v. Food Concepts Int’l, 2:13-cv131, Doc. 34, PageID 322-23.) These claims use the exact same language as those pleaded by
Miller and other plaintiffs. There is no indication of the nature of plaintiff Autrey’s protected activity, the act(s) of retaliation for that activity, the defendant(s) who retaliated, the
dates Miller engaged in protected activity and the date(s) the defendant(s) retaliated, or the
like. While these claims reference all of the paragraphs that proceed them in the complaint,
a reading of the “Background and Allegations” section of the complaint does not answer
any of these questions. The only arguably relevant factual allegation is that beginning in
27

April 2010 Autrey and 13 other plaintiffs “voiced allegations and complaints about
Defendants’ wrongful and discriminatory actions and inactions . . . .” ¶ 148. No helpful
time frame is given, the nature of the complaints is not stated, and the person to whom the
complaints were made is not identified. Further, nowhere in the tendered amended complaint does it allege which defendant took what action when to retaliate for Autrey’s
engaging in protected activity. In short, the tendered amended complaint fails to give
defendants fair notice of the claim asserted against them.
Aiding, Abetting and Interference- Discrimination in Violation of O.R.C. §4112.02(1).
The tendered amended complaint alleges this claim at ¶¶ 190-217. (Id., Autrey, above, Doc.
34, PageID 323-26.) Specifically, it allegations that beginning about April 5, 2010 and continue until January 12, 2011, “Del Vecchio directed Plaintiff to seat Non-Caucasian Customers in the Non-Caucasian Areas” and Del Vecchio assigned targeted employees to work the
Non-Caucasian Areas. (Id., ¶¶ 191-92, PageID 323-24.)
The tendered amended complaint further alleges:
197.

Plaintiff was discriminated against because, not later than July 29,
2010, she orally voiced her opposition to the unlawful discriminatory
practices of Defendant Del Vecchio in the presence of Mr. Linihan and
participated in an investigation, proceeding, or hearing concerning
Defendant Del Vecchio’s unlawful discriminatory acts.

198.

If Plaintiff had not orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio, Plaintiff would not have
been discriminated or retaliated against.

(Id., PageID 324.) The allegations in paragraphs 197 and 198 are directly controverted by
Autrey’s deposition testimony. She testified that on one occasion she yelled at Del

28

Vecchio, complaining about his hovering about her at the host station, his making comment that made her uncomfortable, and interfering with the rotation, which caused the
servers to complain to her. Assistant manager Ed Linihan was present during the confrontation. (Id., Tr. 32-33, ll 18-15, PageID 338-39.) She further testified that Del Vecchio did
not do anything negative as a result of this confrontation:
Actually, it was kind of the opposite. I felt like he randomly was a little bit
nicer. I felt like he respected me a little bit more after that, which is weird. To
my knowledge, I wasn’t written up or anything negative.
(Id., Tr. 60, ll 12-20, PageID 345.) She did not otherwise complain to anyone about Del
Vecchio’s conduct. (Id., Tr. 50-52, ll 1-6, PageID 343.)
The tendered amended complaint further alleges that–for reasons not explained–Del Vecchio’s segregating and separating Abuelo’s Easton restaurant by ancestry,
color, gender, national origin, race and religion caused her “average hourly tip-shared
component of Plaintiff’s hourly was substantially reduced.” (Id., ¶¶ 194 and 197, PageID
324.) Targeted employees complained to Autrey about section or area assignments, the
unbalanced rotation, and the customer and section assignments. (Id., ¶ 199.) Defendants
created a hostile workplace environment of harassment, discrimination, and retaliation.
(Id., ¶ 209, PageID 325.)
The tendered amended complaint pleads no facts giving notice of what conduct
directed at Autrey amounted to discrimination and retaliation or when it took place. While
the allegation that Del Vecchio seated patrons by race and assigned Caucasian servers to
Caucasian tables and non-Caucasian servers to non-Caucasian servers would plead a

29

conclusory claim that he discriminated against Abuelo’s patrons and servers, it does not
plead a claim against Autrey. Indeed, it appears that she participated in the alleged
unlawful conduct.
Nonetheless, the tendered amended complaint may plead a claim that Del Vecchio
subjected Autrey to a hostile work environment but forcing her to engage in discrimination against patrons and servers. To that extent, I conclude that the tendered amended
complaint gives defendant Del Vecchio and the corporate defendants fair notice of a claim.
Discrimination, Segregation or Separation because of Ancestry, Color, National
Origin, Race or Religion- Harassment-Hostile Work Environment. This claim is pleaded in
¶¶ 218-228 of the tendered amended complaint. (Id., PageID 327-28.) These paragraphs are
identical with those in tendered amended complaints filed by Miller and other plaintiffs.
To the extent that they allege that “Defendants have subjected Plaintiff to a hostile work
environment based upon race, gender, and in retaliation for her opposition to Defendants’
various discriminatory acts and omissions and her participation in proceedings alleging
charges of race, gender, and retaliation discrimination . . . ,” (Id., ¶ 219, PageID 327), there
are no allegations about defendants other than Del Vecchio engaging in any actionable
conduct aimed at or affecting Autrey. The claim does not allege what protected activity
Autrey engaged in, when she did so, what retaliatory or other actionable conduct defendants engaged in, or when that conduct occurred. Consequently, the tendered amended
complaint fails to give any defendant fair notice of the this claim.

30

Teddy Crozier (2:13-cv-125).
Plaintiff-specific facts. The factual allegations relating directly to Crozier are as
follows:
C Dates of his employment. Server/bartender. Caucasian male, ¶ 18;
C Never disciplined, ¶ 19;
C Frequently worked as a server, ¶ 20;
C Plaintiff was at all times qualified for and successfully performing his job
duties, ¶ 35;
C “Caucasian male employee who engages in sexual relations with other
males and engages in sodomy with other males,” ¶ 50;
C Crozier is a Caucasian male and one of 15 employees defendants
unlawfully retaliated against, ¶¶ 51-52;
C Del Vecchio retaliated against Crozier, a disabled Caucasian male, by
assigning him to non-Caucasian restaurant patron seating areas, ¶ 104;
C A non-exempt employee who was paid by the hour on a biweekly basis, ¶
141; and
C “Beginning on or about April 2010, [Crozier and 13 other employees]
voiced allegations and complaints about Defendants wrongful and
discriminatory actions and inactions . . . ,” ¶ 148.
(Tendered Amended Complaint, Teddy Crozier v. Food Concepts Int’l, 2:13-cv-125, Doc. 33,
PageID 235, 238, 241, 244-45,255-56, and 264-65.)

31

Crozier’s claims. His tendered amended complaint pleads seven claims. It pleads
an FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, his amended complaint pleads:
. . . (III) Retaliation-Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation - 42 U.S.C. §1981, (V) Aiding, Abetting and
Interference- Discrimination in Violation of O.R.C. §4112.02(1) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion - Harassment - Hostile
Work Environment, and (VII) Retaliation - Discrimination - Harassment Loss of Tangible Job Benefits.
(Tendered Amended Complaint, ¶ 4, Crozier, above, 2:13-cv-125, Doc. 33, PageID 320.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. (October 3, 2013 Order, p. 4, Doc. 27, PageID 192.)
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. The tendered amended complaint contains a bare
bones statement of these claims at ¶¶ 182-89. (Crozier, above, PageID 270-71.) There is no
indication of the nature of plaintiff Crozier’s protected activity, the act(s) of retaliation for
that activity, the defendant(s) who retaliated, the dates Crozier engaged in protected activity and the date(s) the defendant(s) retaliated, or the like.
The retaliation claims reference all of the paragraphs that proceed them in the complaint. The “Background and Allegations” section of the complaint does contain two paragraphs containing allegations specific to Crozier that may be relevant to these retaliation
claims. First, ¶ 104 alleges that Del Vecchio retaliated against Crozier, a disabled Caucas-

32

ian male, by assigning him to non-Caucasian restaurant patron seating areas. The time
frame alleged is ”after April 5, 2010”. It does not allege what protected activity Del
Vecchio was attempting to deter by his retaliation or when that activity took place. The
second is ¶ 148 which alleges that beginning in April 2010 Crozier and 13 other plaintiffs
“voiced allegations and com-plaints about Defendants’ wrongful and discriminatory
actions and inactions . . . .” No helpful time frame is given in either of these paragraphs; ¶
104 does not allege Crozier’s protected activity for which Del Vecchio took the retaliatory
action; and ¶ 148 does not allege the nature of the complaints or the person(s) to whom the
complaints were made. Further, nowhere in the tendered amended complaint does it
allege which defendant took what action when to retaliate for Crozier’s engaging in protected activity. In short, the tendered amended complaint fails to give defendants fair
notice of the retaliation claims asserted against them.
Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.
§4112.02(J). This claim is pleaded at ¶¶ 190-217 of the tendered amended complaint. (Id.,
PageID 271-74.) Once again, the allegations appear to refer to Autrey, not Crozier. For
example, ¶ 191 reads:
Beginning on or about April 10, 2010 and continuing until January 12, 2011,
Defendant Del Vecchio directed Plaintiff to seat Non-Caucasian Customers
in Non-Caucasian Area.
(Id., PageID 271.) Crozier was a bartender and server, not a host. Autrey was a host, not a
server. Similarly, paragraph 195 alleges:
Plaintiff was discriminated against because, not later than July 29, 2010, she
[sic] orally voiced her [sic] opposition to the unlawful discriminatory prac33

tices of Defendant Del Vecchio in the presence of Mr. Linihan and participated in an investigation, proceeding, or hearing concerning Defendant Del
Vecchio’s unlawful discriminatory acts.
(Id., PageID 272.) And ¶ 196 alleges that “[i]f Plaintiff had not orally voiced her [sic]
opposition to the unlawful discriminatory practices” Del Vecchio would not have
discriminated or retaliated against her. (Id.) Paragraph 199 alleges:
As a result of Defendant Del Vecchio’s wrongful acts and discriminatory
acts, Defendant Targeted Employees, excluding Plaintiff, began complaining to
Plaintiff about section or area assignments and the unbalanced rotation and the
customer and section assignments.
(Id., PageID 272.)(Emphasis added.) These allegations clearly relate to Autrey, not Crozier.
Beyond the obvious fact that these allegations relate to Autrey, not Crozier, the
claim further alleges that plaintiff is a member of a protected group, but fails to allege
which group. It alleges he opposed defendants’ wrongful acts, but does not identify those
acts, the defendant(s) committing them, when the act(s) were committed, nor does it allege
how and when Crozier opposed those acts. (Id., ¶ 202, PageID 273.) It alleges that defendants’ actions created a hostile work environment, but alleges no facts supporting that
claim. (Id., ¶ 209, PageID 273.) It alleges that he was “offended by the harassment, discrimination, and retaliation . . . ” (Id., ¶ 208), but pleads no facts giving notice of what conduct
directed at him amounted to harassment, discrimination, and retaliation, who engaged in
that conduct, and when it took place. Once again, the claim fails to give defendants fair
notice of their alleged actionable conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National
Origin, Race or Religion- Harassment-Hostile Work Environment. Paragraphs 218-28 of
34

the tendered amended complaint allege that defendants subjected plaintiff to a hostile
work environment. (Id., PageID 275-76.)
Although this claim alleges that defendants subjected plaintiff to a hostile work environment based upon race, gender, and in retaliation for her [sic] opposition to Defendants’ various discriminatory acts and her [sic] participation in proceedings alleging
charges of race, gender, and retaliation discrimination . . . ” (¶ 219, PageID 275), Crozier is
a male Caucasian. Further, the tendered amended complaint does not identify what
Crozier did to oppose defendants’ discriminatory acts, nor does it allege what those acts
were or when they occurred. This claim may refer to the allegations that Del Vecchio seated customers by ancestry, color, national origin, race or religion and that he had Caucasian servers serve Caucasian customers and non-Caucasian servers serve non-Caucasian
customers. However, the “Background and Allegations” section of the tendered amended
complaint contains no factual allegations about Del Vecchio’s conduct toward Crozier
regarding his server assignments other than the conclusory allegation that he, together
with eight others, was a targeted lifestyle employee. (Id., ¶¶ 50 and 52, PageID 329-30.)
There is no allegation that on a certain date or during a certain period of time Del Vecchio
assigned Crozier to serve certain tables because of his race or gender or with some other
discriminatory animus. Nor is there an allegation that on certain dates or during a certain
period of time Del Vecchio assigned or caused Crozier to be assigned to tables that yielded
him lower tips than other non-lead servers or that he earned less than those servers.
Each plaintiff must plead and, at trial, prove his or her claims for relief against each

35

defendant. A conclusory allegation that Del Vecchio was a bad manager who made racially and lifestyle insensitive and hurtful comments and violated discrimination and public
accommodations laws is not enough. The complaint must say what Del Vecchio and/or
the other named defendants did to harm Crozier in violation of Ohio or federal law. As
pleaded, the tendered amended complaint fails to do that as to this claim.
Retaliation - Discrimination - Harassment - Loss of Tangible Job Benefits. The
tendered amend complaint alleges:
229.

The Plaintiff incorporates by reference all of the foregoing paragraphs of this Complaint as if fully set forth herein.
230.
Defendants various acts and omissions towards plaintiff constitute
retaliation and retaliatory harassment in violation of O.R.C. 4112.02(I)
and O.R.C. 4112.99.
231.
As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.
232.
Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.
(Id., PageID 376-77.)
As discussed above, the tendered amended complaint fails to provide any defendant fair notice of what he did to retaliate against or harass Crozier. There are no allegations about Crozier’s protected conduct, any defendant’s retaliatory actions, or the dates
on which these occurred.
Komekeo Coleman (2:13-cv-126).
Plaintiff-specific facts. The factual allegations relating directly to Coleman are as
follows:

36

C Dates of her employment. Caucasian female,11 ¶ 18;
C Never disciplined, ¶ 19;
C Frequently worked as a server, ¶ 20;
C Del Vecchio was her supervisor, ¶ 24;
C Plaintiff was at all times qualified for and successfully performing her job
duties. ¶ 35.
C Del Vecchio required plaintiff to engage in unlawful discriminatory
practices against Abuelo’s customers and employees, ¶¶ 36, 40, 42, and 45;
C Coleman, Justin Sowell, and Mark Smith II were race targeted AfricanAmerican employees, ¶ 48;
C Coleman is a Lifestyle Targeted African-American female employee who
is married to an African-American and has African-American children, ¶
50,
C She is one of 15 employees defendants unlawfully retaliated against, ¶¶
51-52;
C In April 2013, Abuelo’s Easton general manager Lucanin told Coleman
that she “needed to ‘be looking for other employment’ because when
these matters resolved their employment would be terminated”, ¶ 96
C Del Vecchio discriminated against, punished, and/or retaliated against

11

From other allegations, it appears that Coleman is African-American. (Id., ¶¶ 48

and 50.
37

Coleman by assigning her to serve non-Caucasian Areas, ¶ 104;
C Plaintiff was a non-exempt employee and was paid by the hour on a biweekly basis, ¶ 141;
C “Beginning on or about April 2010, [Coleman and 13 other employees]
voiced allegations and complaints about Defendants wrongful and
discriminatory actions and inactions . . . ,” ¶ 148; and
C

“During Plaintiff’s employment with Abuelo’s Int’l, he [sic] frequently served as
shift lead . . . . “ When Myers directed Del Vecchio to remove Eric Gibbs as bartender, “Del Vecchio demoted African-American shift lead Komekeo Coleman and
replaced her with Mr. Gibbs. On or about August 2010, Defendant Del Vecchio told
Mr. Gibbs that he would make up Mr. Gibbs[‘] loss in wages by giving him Komekeo Coleman’s shift lead position.” ¶ 165.

(October 25, 2013 Response, Tendered Amended Complaint, Komekeo Coleman v. Food
Concepts Int’l, 2:13-cv-126, Doc. 32, PageID 238-42, 244-52, 257-59, 268, and 271.)
Coleman’s claims. Her tendered amended complaint pleads seven claims. It pleads
an FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, her tendered amended complaint pleads claims for:
. . . (III) Retaliation - Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation - 42 U.S.C. § 1981, (V) Aiding, Abetting and
Interference - Discrimination in Violation of O.R.C. §4112.02(J) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion - Harassment - Hostile
Work Environment, and (VII) Retaliation - Discrimination - Harassment Loss of Tangible Job Benefits.

38

(Id., ¶ 4, PageID 238.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. The tendered amended complaint sets out these
claims at ¶¶ 182-89. (October 25, 2013 Response, Coleman, 2:13-cv-126, Doc. 32, PageID
270-71.) These claims use the exact same language as those pleaded by Miller and other
plaintiffs. There is no indication of the nature of plaintiff Coleman’s protected activity, the
act(s) of retaliation for that activity, the defendant(s) who retaliated, the dates Coleman
engaged in protected activity and the date(s) the defendant(s) retaliated, or the like.
While the claims reference all of the paragraphs that proceed them in the complaint,
a reading of the “Background and Allegations” section of the complaint does not answer
any of these questions. The only arguably relevant factual allegation relevant to the retaliation claims is that beginning in April 2010 Coleman and 13 other plaintiffs “voiced
allegations and complaints about Defendants’ wrongful and discriminatory actions and
inactions . . . .” ¶ 148. No helpful time frame is given, the nature of the complaints is not
stated, and the person(s) to whom the complaints were made is not identified. Further,
nowhere in the tendered amended complaint does it allege which defendant took what
action when to retaliate for Coleman’s engaging in protected activity. In short, the tendered amended complaint fails to give defendants fair notice of the claim asserted against

39

them.
As to the discrimination claims, there are several possibly relevant allegations.
Paragraphs 36, 40, 42, and 45 allege that Del Vecchio required plaintiff to engage in
unlawful discriminatory practices against Abuelo’s customers and employees. However,
those allegations appear to relate to Rachel Autrey, not to Coleman. Moreover, there are
no fact-specific allegations about when Del Vecchio told Coleman to engage in the unlawful discriminatory practices, what he told her to do, or the like. An additional allegation of discrimination in the tendered amended complaint is that Coleman, Justin Sowell,
and Mark Smith II were race targeted African-American employees and that Coleman was
one of nine Lifestyle Targeted Employees. (Id., ¶¶ 48 and 50 PageID 246-47.) Del Vecchio
discriminated against, punished, and/or retaliated against Coleman by assigning her to
serve Non-Caucasian Areas. (Id., ¶ 104, PageID 258-59.) While the time frame for the
alleged discriminatory assignment to less desirable tables is alleged to be the entire little
over nine month period Del Vecchio was Abuelo’s Easton’s manager, that allegation is
arguably actionable. However, there are insufficient allegations to state a claim for retaliation. The tendered amended complaint contains no allegations about Coleman’s protected conduct, when that conduct occurred, that Del Vecchio knew about that conduct, and
that he assigned the tables because of that conduct. Finally, the amended complaint alleges
that in or about August 2010, Del Vecchio replaced Coleman as lead server.12 (Id., ¶ 165,

12

The tendered amended complaint also alleges that in April 2013 Abuelo’s
Easton general manager Lucanin told Coleman that she “needed to ‘be looking for other
employment’ because when these matters resolved their employment would be term40

PageID 271.) However, it does not allege that he took that action to discriminate or retaliate against Coleman.
Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.
§4112.02(1). The tendered amended complaint alleges this claim at ¶¶ 191-218. (Id., Coleman, above, Doc. 32, PageID 275-78.) Specifically, it allegations that beginning about April
5, 2010 and continuing until January 12, 2011, “Del Vecchio directed Plaintiff to seat NonCaucasian Customers in the Non-Caucasian Areas” and Del Vecchio assigned targeted
employees to work the Non-Caucasian Areas. (Id., ¶¶ 191-92, PageID 323-24.)
The tendered amended complaint further alleges:
196.

Plaintiff was discriminated against because, not later than July 29,
2010, she orally voiced her opposition to the unlawful discriminatory
practices of Defendant Del Vecchio in the presence of Mr. Linihan and
participated in an investigation, proceeding, or hearing concerning
Defendant Del Vecchio’s unlawful discriminatory acts.

197.

If Plaintiff had not orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio, Plaintiff would not
have been discriminated or retaliated against.

(Id., PageID 275.) The allegations in paragraphs 196 and 197 are identical to those made by
Miller and other plaintiffs. They do not allege what Coleman did to oppose unlawful
discrimination, who she spoke to about that discrimination, when she did so, or the like.
Paragraph 198 alleges that Del Vecchio’s discriminatory acts caused “the average hourly
tip-shared component of Plaintiff’s hourly was substantially reduced.” (Id., PageID 276.)

inated.” (Id., ¶ 96.) There is no allegation that her employment was terminated or that
any adverse job action was associated with the communication.
41

That paragraph clearly refers to Autrey, a host, and not Coleman, who is a server. Paragraph 200 alleges that targeted employees complained to Autrey about section or area
assignments, the unbalanced rotation, and the customer and section assignments. (Id.)
That allegation again relates to Autrey, not Coleman. Paragraph 206 contains the conclusory allegation that “Defendants subjected Plaintiff to and/or condoned harassment, discrimination, and retaliation, which conduct embarrassed, humiliated and intimidated
Plaintiff.” (Id. and ¶ 211 and 213, PageID 277.) No individual defendant is identified.
What conduct they engaged in is not alleged. When that conduct occurred is not alleged.
For these reasons, the claim fails to give defendants fair notice of their alleged actionable
conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National
Origin, Race or Religion- Harassment-Hostile Work Environment. This claim is pleaded in
¶¶ 219-229 of the tendered amended complaint. (Id., PageID 278-80.) These paragraphs are
identical with those in tendered amended complaints filed by Miller and other plaintiffs.
To the extent that they allege that “Defendants have subjected Plaintiff to a hostile work
environment based upon race, gender, and in retaliation for her opposition to Defendants’
various discriminatory acts and omissions and her participation in proceedings alleging
charges of race, gender, and retaliation discrimination . . . ,” (Id., ¶ 220, PageID 278), there
are no allegations about defendants other than Del Vecchio engaging in any actionable
conduct aimed at or affecting Coleman. The claim does not allege what protected activity
Colman engaged in, when she did so, what retaliatory or other actionable conduct defend-

42

ants engaged in, or when that conduct occurred. Consequently, the tendered amended
complaint fails to give any defendant, other than, arguably, Del Vecchio, fair notice of the
claim pleaded against them.
Retaliation-Discrimination-Harassment-Loss of Tangible Job Benefits. This claim is
alleged in ¶¶ 230-33 of the tendered amended complaint. (Id., PageID 280.) The claim is
that “Defendants[’] various acts and omissions towards plaintiff constitute retaliation and
retaliatory harassment in violation of O.R.C. § 4112.02(I) and O.R.C. § 4112.99.” (Id., ¶ 231.)
Once again, the complaint does not allege what protected conduct Coleman engaged in,
when she did so, what action(s) any individual defendant took to retaliate, when they did
so, and the like. The tendered amended complaint fails to give fair notice of Coleman’s
claim.
Eric Gibbs (2:13-cv -127).
Plaintiff-specific facts. The factual allegations relating directly to Gibbs are as
follows:
C Dates of employment. Caucasian male. ¶ 18.
C Never disciplined at Abuelo’s. ¶ 19.
C Gibbs’s was removed from his position as bartender and became a shift lead
server. Del Vecchio informed Gibbs that he would make up for his loss in wages
by giving him Komekeo Coleman’s shift lead position. ¶ 20.
C Del Vecchio was Gibbs’s supervisor. ¶ 24.
C Gibbs was at all times qualified for and successfully performing his job duties as

43

a bartender and shift lead server. ¶ 35.
C Del Vecchio retaliated against Gibbs and 14 other employees, ¶¶ 51-52.
C Gibbs was advised that he “needed to ‘be looking for other employment’ because
when these matters resolved [his] employment would be terminated,” ¶ 96.
C Plaintiff was a non-exempt employee who was paid by the hour on a biweekly
basis, ¶ 141.
C Beginning in April 2010, Gibbs and 13 other plaintiffs “voiced allegations and
complaints about Defendants’ wrongful and discriminatory actions and inactions
. . . .” ¶ 148.
C In August or September 2010, Gibbs reported his findings regarding how
employees worked off the clock without recording time and without receiving
pay to Linihan. ¶ 154.
(Tendered Amended Complaint, Eric Gibbs v. Food Concepts Int’l, 2:13-cv-127, Doc. 34.
PageID 247-48, 250, 253-54, 263, and 273-75.),
Gibbs’s claims. His tendered amended complaint pleads two claims, an FLSA
claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs.
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of
contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.

44

Stacie Johnson (2:13-cv-129).
Plaintiff-specific facts. The factual allegations relating directly to Johnson are as
follows:
C Dates of her employment. Caucasian female, ¶ 18;
C Never disciplined, ¶ 19;
C Frequently worked as a shift lead server, ¶ 20;
C Del Vecchio was her supervisor, ¶ 24;
C Plaintiff was at all times qualified for and successfully performing her job
duties. ¶ 35.
C She is one of 15 employees defendants unlawfully retaliated against, ¶¶
46-47;
C On or about Black Friday 2010, Johnson offered Teddy Crozier tables
outside of the non-Caucasian area because no guests had been seated in
his area. Del Vecchio rebuked Johnson and stated that he was responsible
for section assignments and she was not to change them. Johnson viewed
Del Vecchio’s discrimination and segregation as offensive and reported
the incident to Linihan. ¶ 54.
C Plaintiff was a non-exempt employee and was paid by the hour on a
biweekly basis, ¶ 136;
C “Beginning on or about April 2010, [Johnson and 13 other employees]
voiced allegations and complaints about Defendants wrongful and

45

discriminatory actions and inactions . . . ,” ¶ 143;
C In April 2010, Del Vecchio required plaintiff to have possession of his
managers card in his absence to carry out his management duties. Del
Vecchio directed plaintiff to not provide his card to Defendant Targeted
Employees. Plaintiff found this offensive and reported it to Linihan. ¶ 150
(October 25, 2013 Response, Tendered Amended Complaint, Stacie Johnson v. Food Concepts
Int’l, 2:13-cv-129, Doc. 31, PageID 233, 236, 238-39, 258-59, and 261.)
Johnson’s claims. Her tendered amended complaint pleads four claims. It pleads
an FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, her tendered amended complaint pleads claims for:
. . . (III) Aiding, Abetting and Interference - Discrimination in Violation of
O.R.C. §4112.02(J) and O.R.C. §4112.99, and (IV) Discrimination, Segregation
or Separation because of Ancestry, Color, National Origin, Race or Religion Harassment - Hostile Work Environment.
(Id., ¶ 4, PageID 230.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.
§4112.02(1). The tendered amended complaint alleges this claim at ¶¶ 175-197. (Id., Johnson, above, Doc. 31, PageID 265-68.) Specifically, it alleges that beginning about April 5,
2010 and continue until January 12, 2011, “Del Vecchio discriminated against Defendant
Targeted Employees by not allowing them access to his managers card when Plaintiff
46

possessed it during Defendant Del Vecchio’s absence from the restaurant.” (Id., ¶ 176
PageID 265.)
The tendered amended complaint further alleges:
177.

Plaintiff was discriminated against because, not later than April 2010,
she orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio in the presence of Mr. Linihan and participated in an investigation, proceeding, or hearing concerning Defendant Del Vecchio’s unlawful discriminatory acts.

178.

If Plaintiff had not orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio, Plaintiff would not
have been discriminated or retaliated against.

(Id., PageID 265.) Although paragraphs 177 and 178 allege that Johnson was discriminated
against because she told assistant manager Linihan about Del Vecchio’s unlawful discriminatory practices, it does not allege who discriminated against her, what adverse job action
she suffered, or when that occurred. Nor does the tendered amended complaint allege
what Johnson did to oppose unlawful discrimination, who she spoke to about that discrimination other than Linihan, when she did so, or the like. Paragraph 186 contains the
conclusory allegation that “Defendants subjected Plaintiff to and/or condoned harassment, discrimination, and retaliation, which conduct embarrassed, humiliated and intimidated Plaintiff.” (Id. and ¶ 191 and 192, PageID 267.) No individual defendant is
identified. What conduct they engaged in is not alleged. When that conduct occurred is
not alleged. For these reasons, the claim fails to give defendants fair notice of their alleged
actionable conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National

47

Origin, Race or Religion-Harassment-Hostile Work Environment. This claim is pleaded in
¶¶ 198-208 of the tendered amended complaint. (Id., PageID 268-69.) These paragraphs are
nearly identical with those in tendered amended complaints filed by Miller and other
plaintiffs. To the extent that they allege that “Defendants have subjected Plaintiff to a
hostile work environment based upon race, gender, and in retaliation for her opposition to
Defendants’ various discriminatory acts and omissions and her participation in proceedings alleging charges of race, gender, and retaliation discrimination . . . ,” (Id., ¶ 199,
PageID 268), there are no allegations about defendants other than Del Vecchio engaging in
any actionable conduct aimed at or affecting Johnson. The complaint alleges that on Black
Friday 2010, Del Vecchio rebuked Johnson for offering Teddy Crozier tables outside of the
non-Caucasian area. Johnson viewed Del Vecchio’s discrimination and segregation as
offensive and reported the incident to Linihan. Id., ¶ 54. However, the claim does not
allege what retaliatory or other actionable conduct defendant Myers engaged in or when
that conduct occurred. Consequently, the tendered amended complaint fails to give
defendant Myers fair notice of the claim pleaded against him. Although I recognize that
the tendered amended complaint may not survive a motion to dismiss because it does not
allege any adverse job action other than a “rebuke” on one occasion, I conclude that
argument should not be resolved in a decision whether to grant leave to file an amended
complaint. Accordingly, the leave to amend is granted as to this claim against defendants
Del Vecchio, Food Concepts International, LP, and Abuelo’s International LP.

48

Lukus Troyer (2:13-cv-130).
Plaintiff-specific facts. The factual allegations relating directly to Troyer are as
follows:
C Dates of employment. Caucasian male, ¶ 18;
C Never disciplined at Abuelo’s, ¶ 19;
C Troyer’s job is server, ¶ 20;
C Del Vecchio was Troyer’s supervisor. ¶ 24;
C Troyer was at all times qualified for and successfully performing his job duties, ¶
35;
C Troyer is a “Caucasian male employee who engages in sexual relations with
other males and engages in sodomy with other males . . . ,” ¶ 50;
C Del Vecchio retaliated against Troyer and 14 other employees, ¶¶ 51-52;
C Troyer was advised that he “needed to ‘be looking for other employment’
because when these matters resolved [his] employment would be terminated,” ¶
96;
C Plaintiff was a non-exempt employee who was paid by the hour on a biweekly
basis, ¶ 141;
C Beginning in April 2010, Troyer and 13 other plaintiffs “voiced allegations and
complaints about Defendants’ wrongful and discriminatory actions and inactions
. . . ,” ¶ 148; and
C Plaintiff was advised that he would lose his job when this matter was resolved

49

and that he would not be permitted to re-apply, ¶ 165.
(October 25, 2013 Response, Tendered Amended Complaint, Lucas Troyer v. Food Concepts
Int’l, 2:13-cv-130, Doc. 34, PageID 242-43, 245, 248-49, 258, 268-69, 272.)
Troyer’s claims. His tendered amended complaint pleads seven claims. It pleads an
FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, his amended complaint pleads:
. . . (III) Retaliation-Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation -42 U.S.C. §1981, (V) Aiding, Abetting and
Interference- Discrimination in Violation of O.R.C. §4112.02(1) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion- Harassment-Hostile
Work Environment, and (VII) Retaliation - Discrimination - Harassment Loss of Tangible Job Benefits.
Tendered Amended Complaint, ¶ 4, Doc. 34, PageID 239.
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. The tendered amended complaint contains a bare bones
statement of these claim, using identical language to that in the amended complaints tendered by Miller and other plaintiffs:
[O.R.C. § 4112.02(I) and O.R.C. § 4112.99]
183.
The Plaintiff incorporates by reference all of the foregoing
paragraphs of this Complaint as if fully set forth herein.
184.

Defendants’ various acts and omissions directed towards Plaintiff
constitute retaliation and retaliatory harassment in violation of O.R.C.
50

4112.02(I) and O.R.C. 4112.99.
185.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

186.

Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.

[Retaliation- 42 U.S.C. §1981]
187.
The Plaintiff incorporates by reference all of the foregoing
paragraphs of this Complaint as if fully set forth herein.
188.

Defendants’ various acts and omissions directed towards Plaintiff
constitute retaliation and retaliatory harassment in violation of 42
U.S.C. §1981.

189.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

190.

Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.

(October 25, 2013 Response, Troyer, above, Doc. 34, PageID 274-75.) There is no indication
of the nature of plaintiff Troyer’s protected activity, the act(s) of retaliation for that activity, the defendant(s) who retaliated, the dates Troyer engaged in protected activity and
the date(s) the defendant(s) retaliated, or the like. While the claims reference all of the
paragraphs that proceed them in the complaint, a reading of the “Background and Allegations” section of the complaint does not answer any of these questions. The only arguably
relevant factual allegation is that beginning in April 2010 Troyer and 13 other plaintiffs
“voiced allegations and complaints about Defendants’ wrongful and discriminatory actions and inactions . . . .” ¶ 148. No helpful time frame is given, the nature of the complaints
is not stated, and the person to whom the complaints were made is not identified. Further,

51

nowhere in the tendered amended complaint does it allege which defendant took what
action when to retaliate for Troyer’s engaging in protected activity. In short, the tendered
amended complaint fails to give defendants fair notice of the retaliation claims asserted
against them.
Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.
§4112.02(J). The tendered amended complaint alleges, in language nearly identical to that
in the amended complaints tendered by Autrey and other plaintiffs, that:
196.

Plaintiff was discriminated against because, not later than July 29,
2010, she [sic] orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio in the presence of Mr.
Linihan and participated in an investigation, proceeding, or hearing
concerning Defendant Del Vecchio’s unlawful discriminatory acts.

197.

If Plaintiff had not orally voiced her [sic] opposition to the unlawful
discriminatory practices of Defendant Del Vecchio, Plaintiff would not
have been discriminated or retaliated against.

198.

As a result of Defendant Del Vecchio’s wrongful acts and discriminatory acts, the average hourly tip-shared component of Plaintiff’s hourly
wage was substantially reduced.

199.

As a result of Defendant Del Vecchio’s wrongful acts and discriminatory acts, Plaintiff’s ability to continue successfully completing her [sic]
job assignments became considerably more difficult.

200.

As a result of Defendant Del Vecchio’s wrongful acts and discriminatory acts, Defendant Targeted Employees, excluding Plaintiff, began
complaining to Plaintiff about section or area assignments and the unbalanced rotation and the customer and section assignments.

201.

As a result of Defendants actions and inactions, Plaintiff lost wages
she would have earned but-for Defendants wrongful discriminatory
actions and inactions.

202.

The financial and emotional harms suffered by Plaintiff were a direct
52

and proximate result of various acts and omissions of Defendants.
203.

The Plaintiff is a member of a protected group by virtue of his having
opposed the wrongful acts of Defendants as provided under R.C.
§4112.02(A) and (I).

204.

The Plaintiff was an “employee” as R.C. §4112.01(3) defines that
term.

205.

Defendants are “employer” as R.C. §4112.01(A)(2) defines that term
because Defendants employ four or more persons within the state and
Defendants Myers and Del Vecchio were acting directly or indirectly in
the interest of an employer.

206.

Defendants subjected Plaintiff to and/or condoned harassment,
discrimination, and retaliation, which conduct embarrassed, humiliated, and intimidated Plaintiff.

207.

Defendants’ discriminatory conduct was motivated by Plaintiff’s
opposition and participation in a race, gender, and retaliation proceeds
or investigation.

208.

Defendants’ various discrimination acts and omissions created and
perpetuated a hostile workplace environment of harassment, discrimination, and retaliation that a reasonable person would find to be hostile, intimidating, offensive and abusive.

209.

Plaintiff was offended by the harassment, discrimination, and retaliation and, further, perceived the workplace environment created and
perpetuated by Defendants to be hostile, intimidating, offensive and
abusive.

210.

Defendants creation of a hostile workplace environment of harassment, discrimination, and retaliation altered the conditions of Plaintiff’s
employment with Defendant Abuelo’s Int’l.

211.

Plaintiff and other employees reported the hostile work environment
to her supervisor but no corrective action was taken.

212.

Plaintiff’s lost in income, reduced work hours, and loss of benefits
was motivated, in whole or in part, in retaliation for Plaintiff’s participation in, opposition to and reporting of Defendants’ wrongful discrim53

inatory acts and omissions.
213.

Defendants’ conduct violates R.C. § 4112.02 and § 4112.99, which
prohibits harassment and adverse employment actions against employees on the basis of an employee’s participation in or filing of or in
opposition to Defendants’ wrongful discriminator acts and inactions,
and entitles Plaintiff to damages.

214.

Defendants’ illegal, discriminatory conduct, including but not limited
to the creation of a hostile work environment, have seriously affected
Plaintiff’s psychological well-being.

215.

As a direct and proximate result of Defendants’ discriminatory
actions and omissions complained of herein was intentional, motivated
by malice and ill will and/or done with reckless disregard of Plaintiff’s
rights, thereby entitling Plaintiff to recover punitive damages.

216.

Defendants’ various acts and omissions directed towards Plaintiff
constitute discrimination – aiding, abetting and interference in violation
of O.R.C. 4112.02(J) and O.R.C. 4112.99.

217.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

218.

Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.

(Id., PageID 276-78.)
These allegations don’t make any sense. First, the plaintiff is referred to as “she”,
and the structure of the claims suggests that the plaintiff referred to is Autrey, not Troyer.
Second, Troyer is a server who the complaint alleges was a targeted employee, yet this
claim alleges that the “Defendant Targeted Employees13, excluding Plaintiff, began complaining to Plaintiff about section or area assignment and the unbalance rotation and the

13

The term “Defendant Targeted Employees” refers to plaintiffs who were
“targeted” by defendants to be subjected to discrimination or retaliation.
54

customer and section assignments.” (Id., ¶ 200, PageID 276.)(Emphasis added.)
The claim further alleges that plaintiff is a member of a protected group, but fails to
allege which group. It alleges he opposed defendants’ wrongful acts, but does not identify
those acts, the defendant(s) committing them, when the act(s) were committed, nor does it
allege how and when Troyer opposed those acts. (Id., ¶ 203, PageID 277.) It alleges that
defendants’ actions created a hostile work environment, but alleges no facts supporting
that claim. (Id., ¶ 208, PageID 277.) It alleges that he was “offended by the harassment,
discrimination, and retaliation . . . ,” but pleads no facts giving notice of what conduct
directed at him amounted to harassment, discrimination, and retaliation, who engaged in
that conduct, and when it took place. Once again, the claim fails to give defendants fair
notice of their alleged actionable conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National
Origin, Race or Religion- Harassment-Hostile Work Environment. The tendered amended
complaint alleges:
219.

The Plaintiff incorporates by reference all of the foregoing paragraphs of this Complaint as if fully set forth herein.

220.

Defendants’ have subjected Plaintiff to a hostile work environment
based upon race, gender, and in retaliation for her opposition to
Defendants’ various discriminatory acts and omissions and her
participation in proceedings alleging charges of race, gender, and
retaliation discrimination in violation of O.R.C. 4112.02 and O.R.C.
4112.99.

221.

As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.

222.

Defendants’ actions have been so egregious so as to warrant the
55

imposition of punitive damages.
223.

Because Plaintiff’s complaints of harassment motivated Defendants
to reduce the hours he was paid for, reduce the hours he was scheduled
to work, and reduce his overall benefits, Defendants violated Ohio law.

224.

Defendants acted with malice and ill will toward Plaintiff and without regard for his legal rights in withholding pay for hours she [sic]
worked, reducing the number of hours he was allowed to work, and
reducing his overall benefits and otherwise discriminating against him
with regard to tenure, terms, conditions, or privileges of employment,
and other matters directly or indirectly related to his employment.

225.

Defendants’ conduct violates R.C. Chapter 4112.

226.

Defendants did not exercise reasonable care to prevent harassment.

227.

Plaintiff notified Defendants of the harassment.

228.

Defendants did not promptly correct the harassing behavior once
notified by Plaintiff and the other employees.

229.

As a direct and proximate result of Defendants’ actions as set forth
above, Plaintiff has suffered:
a. Loss of wages;
b. Loss of benefits;
c. Loss of other fringe benefits;
d. Loss of the opportunity to be able to continue the gainful employ in
which she [sic] had been engaged;
e. Loss of future earnings and front-pay;
f. Loss of reputation; and
g. Humiliation, embarrassment, and loss of self-esteem;
h. Loss of time and money in endeavoring to protect her [sic] from
Defendants’ unlawful discrimination, including cost and reasonable
attorney’s fees of this action.

(Id., PageID 279-80.)
Although this claim alleges that defendants subjected plaintiff to a hostile work
environment based upon race, gender, and in retaliation for her [sic] opposition to

56

Defendants’ various discriminatory acts and her [sic] participation in proceedings alleging
charges of race, gender, and retaliation discrimination . . . ,” Troyer is a male Caucasian.
Further, the proposed amended complaint does not identify what Troyer did to oppose
defendants’ discriminatory acts, nor does it allege what those acts were or when they
occurred. This claim may refer to the allegations that Del Vecchio seated customers by
ancestry, color, national origin, race or religion and that he had Caucasian servers serve
Caucasian customers and non-Caucasian servers serve non-Caucasian customers. However, the “Background and Allegations” section of the tendered amended complaint contains no factual allegations about Del Vecchio’s conduct toward Troyer regarding his server assignments other than the conclusory allegation that he, together with eight others,
was a targeted lifestyle employee and a lifestyle targeted employee. (Id., ¶¶ 50 and 52,
PageID 248-49.) There is no allegation that on a certain date or during a certain period of
time Del Vecchio assigned Troyer to serve certain tables because of his race or gender or
with some other discriminatory animus. Nor is there an allegation that on certain dates or
during a certain period of time Del Vecchio assigned or caused Troyer to be assigned to
tables that yielded him lower tips than other non-lead servers or that he earned less than
those servers.
Each plaintiff must plead and, at trial, prove his or her claims for relief against each
defendant. A conclusory allegation that Del Vecchio was a bad manager who made racially and lifestyle insensitive and hurtful comments and violated discrimination and public
accommodations laws is not enough. The complaint must say what Del Vecchio and/or

57

the other named defendants did to harm Troyer in violation of Ohio or federal law. As
pleaded, the tendered amended complaint fails to do that as to this claim.
Retaliation - Discrimination - Harassment - Loss of Tangible Job Benefits. The
tendered amend complaint alleges:
230.

The Plaintiff incorporates by reference all of the foregoing
paragraphs of this Complaint as if fully set forth herein.
231.
Defendants various acts and omissions towards plaintiff constitute
retaliation and retaliatory harassment in violation of O.R.C. 4112.02(I)
and O.R.C. 4112.99.
232.
As a direct and proximate cause of Defendants’ acts and omissions
alleged herein, Plaintiff has suffered mental and emotional distress.
233.
Defendants’ actions have been so egregious so as to warrant the
imposition of punitive damages.
(Id., PageID 280.)
As discussed above, the tendered amended complaint fails to provide any defendant fair notice of what he did to retaliate against or harass Troyer. There are no allegations
about Troyer’s protected conduct, any defendant’s retaliatory actions, or the dates on
which these occurred.
Angie Tigner (2:13-cv-132).
Plaintiff-specific facts. The factual allegations relating directly to Tigner are as
follows:
C Dates of her employment. Caucasian female, ¶ 18;
C Never disciplined, ¶ 19;
C Frequently worked as a server, bartender, certified trainer and/or caterer,
¶ 20;

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C Del Vecchio was her supervisor, ¶ 24;
C Plaintiff was at all times qualified for and successfully performing her job
duties. ¶ 35.
C Tigner is a Lifestyle Targeted Caucasian female employee who is dating
an African-American and has a Caucasian-African-American child, ¶ 45,
C She is one of 15 employees defendants unlawfully retaliated against, ¶¶
46-47;
C On or about May 5, 2010. Del Vecchio required Tigner and three others to
repay more than $300.00 in till shortage, ¶ 117;
C Plaintiff was a non-exempt employee and was paid by the hour on a
biweekly basis, ¶ 136;
C “Beginning on or about April 2010, [Tigner and 13 other employees]
voiced allegations and complaints about Defendants wrongful and
discriminatory actions and inactions . . . ,” ¶ 143; and,
C In August 2010, Tigner became aware of the Del Vecchio’s hit list and
informed Linihan about it. ¶ 149.
(October 25, 2013 Response, Tendered Amended Complaint, Angie Tigner v. Food Concepts
Int’l, 2:13-cv-132, Doc. 33, PageID 246, 249, 251-52, 266-67, 271-72, and 274.)
Tigner’s claims. Her tendered amended complaint pleads seven claims. It pleads an
FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all
plaintiffs. In addition, her tendered amended complaint pleads claims for:

59

. . . (III) Retaliation -Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation— 42 U.S.C. § 1981, (V) Aiding, Abetting and
Interference - Discrimination in Violation of O.R.C. §4112.02(J) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion - Harassment - Hostile
Work Environment, and (VII) Retaliation - Discrimination - Harassment Loss of Tangible Job Benefits.
(Id., ¶ 4, PageID 321.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. The tendered amended complaint sets out these
claims at ¶¶ 176-79. (October 25, 2013 Response, Tigner, 2:13-cv-132, Doc. 33, PageID 35657.) These claims use the exact same language as those pleaded by Miller and other plaintiffs. There is no indication of the nature of plaintiff Tigner’s protected activity, the act(s)
of retaliation for that activity, the defendant(s) who retaliated, the dates Tigner engaged in
protected activity and the date(s) the defendant(s) retaliated, or the like.
While the claims reference all of the paragraphs that proceed them in the complaint,
a reading of the “Background and Allegations” section of the complaint does not answer
any of these questions. The only arguably relevant factual allegation relevant to the retaliation claims is that beginning in April 2010 Tigner and 13 other plaintiffs “voiced allegations and complaints about Defendants’ wrongful and discriminatory actions and inactions . . . .” ¶ 143. No helpful time frame is given, the nature of the complaints is not stated,

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and the person(s) to whom the complaints were made is not identified. Further, nowhere
in the tendered amended complaint does it allege which defendant took what action when
to retaliate for Tigner’s engaging in protected activity. In short, the tendered amended
complaint fails to give defendants fair notice of the claim asserted against them.
As to the discrimination claims, there are several possibly relevant allegations.
Paragraphs 36, 40, 42, and 45 allege that Del Vecchio required plaintiff to engage in unlawful discriminatory practices against Abuelo’s customers and employees. However,
those allegations appear to relate to Rachel Autrey, not to Tigner. Moreover, there are no
fact-specific allegations about when Del Vecchio told Tigner to engage in the unlawful
discriminatory practices, what he told her to do, or the like. The tendered amended complaint further alleges that Tigner was one of nine Lifestyle Targeted Employees. (Id., ¶ 47
PageID 330.) Del Vecchio discriminated against, punished, and/or retaliated against
certain Lifestyle Targeted Employees by assigning them to serve Non-Caucasian Areas.
(Id., ¶ 51, PageID 331.) However, there is no allegation that Del Vecchio, or any other
defendant, assigned Tigner to non-Caucasian tables on a specified date or during a specified time period or that she earned less money than she would have made had she not
been assigned to non-Caucasian tables.
The tendered amended complaint contains no allegations about Tigner’s protected
conduct, when that conduct occurred, that Del Vecchio knew about that conduct, or that
he assigned the tables because of that conduct.
Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.

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§4112.02(1). The tendered amended complaint alleges this claim at ¶¶ 184-208. (Id., Tigner,
above, Doc. 33, PageID 357-60.) Specifically, it alleges that “Del Vecchio discriminated,
segregated and separated the Abuelo’s Easton Restaurant based upon the Ancestry, Color,
Gender, National Origin, Race and Religion of the Non-Caucasians Customers and
Defendants Targeted Employees.” (Id., ¶ 185, PageID 357.)
The tendered amended complaint further alleges:
186.

Plaintiff was discriminated against because, not later than July 29,
2010, she orally voiced her opposition to the unlawful discriminatory
practices of Defendant Del Vecchio in the presence of Mr. Linihan and
participated in an investigation, proceeding, or hearing concerning
Defendant Del Vecchio’s unlawful discriminatory acts.

187.

If Plaintiff had not orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio, Plaintiff would not
have been discriminated or retaliated against.

(Id., PageID 358.) The allegations in paragraphs 186 and 187 are identical to those made by
Autrey and other plaintiffs. Further, the allegations clearly refer to Autrey and not Tigner.
Moreover, they do not allege what Tigner did to oppose unlawful discrimination, who she
spoke to about that discrimination, when she did so, or the like. Paragraph 188 alleges that
as a result of Del Vecchio’s discriminatory acts, Tigner was wrongfully terminated. (Id.,
PageID 358.) Paragraph 196 contains the conclusory allegation that “Defendants subjected
Plaintiff to and/or condoned harassment, discrimination, and retaliation, which conduct
embarrassed, humiliated and intimidated Plaintiff.” (Id. PageID 359.) No individual
defendant is identified. What conduct they engaged in is not alleged. When that conduct
occurred is not alleged. For these reasons, the claim fails to give defendants fair notice of

62

their alleged actionable conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National
Origin, Race or Religion- Harassment-Hostile Work Environment. This claim is pleaded in
¶¶ 209-219 of the tendered amended complaint. (Id., PageID 360-62.) These paragraphs are
identical with those in tendered amended complaints filed by Miller and other plaintiffs.
To the extent that they allege that “Defendants have subjected Plaintiff to a hostile work
environment based upon race, gender, and in retaliation for her opposition to Defendants’
various discriminatory acts and omissions and her participation in proceedings alleging
charges of race, gender, and retaliation discrimination . . . ,” (Id., ¶ 210, PageID 361), there
are no allegations about defendants other than Del Vecchio engaging in any actionable
conduct. The claim does not allege what protected activity Tigner engaged in, when she
did so, what retaliatory or other actionable conduct defendants engaged in, or when that
conduct occurred. Consequently, the tendered amended complaint fails to give any
defendant fair notice of the claim pleaded against them.
Retaliation-Discrimination-Harassment-Loss of Tangible Job Benefits. This claim is
alleged in ¶¶ 220-23 of the tendered amended complaint. (Id., PageID 362.) The claim is
that “Defendants[’] various acts and omissions towards plaintiff constitute retaliation and
retaliatory harassment in violation of O.R.C. § 4112.02(I) and O.R.C. § 4112.99.” (Id., ¶ 221.)
Once again, the complaint does not allege what protected conduct Tigner engaged in,
when she did so, what action(s) any individual defendant took to retaliate, when they did
so, and the like. The tendered amended complaint fails to give fair notice of Tigner’s claim.

63

Amanda McEldowney (2:13-cv-133).
Plaintiff-specific facts. The factual allegations relating directly to McEldowney are
as follows:
C Dates of her employment. Caucasian female, ¶ 18;
C Never disciplined, ¶ 19;
C Frequently worked as a lead server, ¶ 20;
C Del Vecchio was her supervisor, ¶ 24;
C Plaintiff was at all times qualified for and successfully performing her job
duties. ¶ 35.
C Del Vecchio required plaintiff to engage in unlawful discriminatory
practices against Abuelo’s customers and employees, ¶¶ 36, 40, 42, and 45;
C She is one of 15 employees defendants unlawfully retaliated against, ¶ 52;
C In April 2013, Abuelo’s Easton general manager Lucanin told McEldwoney that she “needed to ‘be looking for other employment’ because when
these matters resolved their employment would be terminated”, ¶ 96;
C Plaintiff was a non-exempt employee and was paid by the hour on a biweekly basis, ¶ 141; and
C “Beginning on or about April 2010, [McEldowney and 13 other employees] voiced allegations and complaints about Defendants wrongful and
discriminatory actions and inactions . . . ,” ¶ 148.

64

(October 25, 2013 Response, Tendered Amended Complaint, Amanda McEldowney v. Food
Concepts Int’l, 2:13-cv-133, Doc. 32, PageID 184-85, 187-91, 200 and 210-11.)
McEldowney’s claims. Her tendered amended complaint pleads five claims. It
pleads an FLSA claim and a breach of contract claim for wages and benefits, claims
pleaded by all plaintiffs. In addition, her tendered amended complaint pleads claims for:
. . .(III) Retaliation – Discrimination in Violation of O.R.C. §4112.02(I) and
O.R.C. §4112.99, (IV) Retaliation – 42 U.S.C. §1981, and (V) Retaliation Discrimination – Harassment – Loss of Tangible Job Benefits.
(Id., ¶ 4, PageID 181.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. The tendered amended complaint sets out these
claims at ¶¶ 182-89. (October 25, 2013 Response, McEldowney, 2:13-cv-133, Doc. 32, PageID
216-17.) These claims use the exact same language as those pleaded by Miller and other
plaintiffs. There is no indication of the nature of plaintiff McEldowney’s protected activity,
the act(s) of retaliation for that activity, the defendant(s) who retaliated, the dates McEldowney engaged in protected activity and the date(s) the defendant(s) retaliated, or the
like.
While the claims reference all of the paragraphs that proceed them in the complaint,
a reading of the “Background and Allegations” section of the complaint does not answer

65

any of these questions. The only arguably relevant factual allegation relevant to the retaliation claims is that beginning in April 2010 McEldowney and 13 other plaintiffs “voiced
allegations and complaints about Defendants’ wrongful and discriminatory actions and
inactions . . . .” ¶ 148. No helpful time frame is given, the nature of the complaints is not
stated, and the person(s) to whom the complaints were made is not identified. Further,
nowhere in the tendered amended complaint does it allege which defendant took what
action when to retaliate for McEldowney’s engaging in protected activity. In short, the
tendered amended complaint fails to give defendants fair notice of the claim asserted
against them.
Retaliation-Discrimination-Harassment-Loss of Tangible Job Benefits. This claim is
alleged in ¶¶190-94 of the tendered amended complaint. (Id., PageID 217.) The claim is
that “Defendants[’] various acts and omissions towards plaintiff constitute retaliation and
retaliatory harassment in violation of O.R.C. § 4112.02(I) and O.R.C. § 4112.99.” (Id., ¶ 191.)
Once again, the complaint does not allege what protected conduct McEldowney engaged
in, when she did so, what action(s) any individual defendant took to retaliate, when they
did so, and the like. The tendered amended complaint fails to give fair notice of McEldowney’s claim.
Jamie Lee Keegan (2:13-cv-134).
Plaintiff-specific facts. The factual allegations relating directly to Keegan are as
follows:
C Dates of her employment. Caucasian female, ¶ 18;

66

C Never disciplined, ¶ 19;
C Frequently worked as a lead server, ¶ 20;
C Del Vecchio was her supervisor, ¶ 24;
C Plaintiff was at all times qualified for and successfully performing her job
duties. ¶ 35;
C Del Vecchio required plaintiff to engage in unlawful discriminatory
practices against Abuelo’s customers and employees, ¶¶ 36, 40, 42, and 45;
C She is one of 15 employees defendants unlawfully retaliated against, ¶¶
51-52;
C In April 2013, Abuelo’s Easton general manager Lucanin told Keegan that
she “needed to ‘be looking for other employment’ because when these
matters resolved their employment would be terminated”, ¶ 96;
C Plaintiff was a non-exempt employee and was paid by the hour on a
biweekly basis, ¶ 141; and
C “Beginning on or about April 2010, [Keegan and 13 other employees]
voiced allegations and complaints about Defendants wrongful and
discriminatory actions and inactions . . . ,” ¶ 148.
(October 25, 2013 Response, Tendered Amended Complaint, Jamie Keegan v. Food Concepts
Int’l, 2:13-cv-134, Doc. 32, PageID 308-09, 311-15, 324, and 334-35.)
Keegan’s claims. Her tendered amended complaint pleads seven claims. It pleads
an FLSA claim and a breach of contract claim for wages and benefits, claims pleaded by all

67

plaintiffs. In addition, her tendered amended complaint pleads claims for:
. . . (III) Retaliation -Discrimination in Violation of O.R.C. §4112.02(1) and
O.R.C. §4112.99, (IV) Retaliation— 42 U.S.C. § 1981, (V) Aiding, Abetting and
Interference - Discrimination in Violation of O.R.C. §4112.02(J) and O.R.C.
§4112.99, and (VI) Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion - Harassment - Hostile
Work Environment, and (VII) Retaliation - Discrimination - Harassment Loss of Tangible Job Benefits.
(Id., ¶ 4, PageID 305.)
FLSA and breach of contract for wages. Defendants have previously conceded that
plaintiffs’ complaints state claims for unpaid wages under the FLSA and breach of contract. October 3, 2013 Order, p. 4, Doc. 27, PageID 192.
Retaliation-discrimination in violation of Ohio Revised Code §§ 4112.02(J) and
4112.99 and Retaliation-42 U.S.C. §1981. The tendered amended complaint sets out these
claims at ¶¶ 182-89. (October 25, 2013 Response, Keegan, 2:13-cv-134, Doc. 32, PageID 34041.) These claims use the exact same language as those pleaded by Miller and other plaintiffs. There is no indication of the nature of plaintiff Keegan’s protected activity, the act(s)
of retaliation for that activity, the defendant(s) who retaliated, the dates Miller engaged in
protected activity and the date(s) the defendant(s) retaliated, or the like.
While the claims reference all of the paragraphs that proceed them in the complaint,
a reading of the “Background and Allegations” section of the complaint does not answer
any of these questions. The only arguably relevant factual allegation relevant to the retaliation claims is that beginning in April 2010 Keegan and 13 other plaintiffs “voiced allegations and complaints about Defendants’ wrongful and discriminatory actions and inact-

68

ions . . . .” ¶ 148. No helpful time frame is given, the nature of the complaints is not stated,
and the person(s) to whom the complaints were made is not identified. Further, nowhere
in the tendered amended complaint does it allege which defendant took what action when
to retaliate for Keegan’s engaging in protected activity. In short, the tendered amended
complaint fails to give defendants fair notice of the claim asserted against them.
As to the discrimination claims, there are several possibly relevant allegations.
Paragraphs 36, 40, 42, and 45 allege that Del Vecchio required plaintiff to engage in unlawful discriminatory practices against Abuelo’s customers and employees. However,
those allegations appear to relate to Rachel Autrey, not to Keegan. Moreover, there are no
fact-specific allegations about when Del Vecchio told Keegan to engage in the unlawful
discriminatory practices, what he told her to do, or the like. The tendered amended
complaint further alleges that Keegan was one of the retaliated against employees. (Id., ¶
52 PageID 315.) There are insufficient allegations to state a claim for retaliation. The
tendered amended complaint contains no allegations about Keegan’s protected conduct,
when that conduct occurred, that Del Vecchio knew about that conduct, or that he
assigned the tables because of that conduct.
Aiding, Abetting and Interference - Discrimination in Violation of O.R.C.
§4112.02(1). The tendered amended complaint alleges this claim at ¶¶ 191-217. (Id., Keegan,
above, Doc. 32, PageID 341-44.) Specifically, it allegations that beginning about April 5,
2010 and continue until January 12, 2011, “Del Vecchio directed Plaintiff to seat NonCaucasian Customers in the Non-Caucasian Areas” and Del Vecchio assigned targeted
69

employees to work the Non-Caucasian Areas. (Id., ¶¶ 191-92, PageID 323-24.)
The tendered amended complaint further alleges:
196.

Plaintiff was discriminated against because, not later than July 29,
2010, she orally voiced her opposition to the unlawful discriminatory
practices of Defendant Del Vecchio in the presence of Mr. Linihan and
participated in an investigation, proceeding, or hearing concerning
Defendant Del Vecchio’s unlawful discriminatory acts.

197.

If Plaintiff had not orally voiced her opposition to the unlawful discriminatory practices of Defendant Del Vecchio, Plaintiff would not
have been discriminated or retaliated against.

(Id., PageID 275.) The allegations in paragraphs 196 and 197 are identical to those made by
Miller and other plaintiffs. They do not allege what Keegan did to oppose unlawful
discrimination, who she spoke to about that discrimination, when she did so, or the like.
Paragraph 198 alleges that Del Vecchio’s discriminatory acts made plaintiff’s ability to
successfully complete her job assignments considerably more difficult. Paragraph 200
alleges that plaintiff lost wages she would have earned but for defendants discriminatory
conduct. These allegations relate to Autrey, not Keegan. Paragraph 206 contains the
conclusory allegation that “Defendants subjected Plaintiff to and/or condoned harassment, discrimination, and retaliation, which conduct embarrassed, humiliated and intimidated Plaintiff.” (Id. and ¶ 205, PageID 343.) No individual defendant is identified. What
conduct they engaged in is not alleged. When that conduct occurred is not alleged. For
these reasons, the claim fails to give defendants fair notice of their alleged actionable
conduct.
Discrimination, Segregation or Separation because of Ancestry, Color, National
70

Origin, Race or Religion- Harassment-Hostile Work Environment. This claim is pleaded in
¶¶ 219-228 of the tendered amended complaint. (Id., PageID 345-46.) These paragraphs are
identical with those in tendered amended complaints filed by Miller and other plaintiffs.
To the extent that they allege that “Defendants have subjected Plaintiff to a hostile work
environment based upon race, gender, and in retaliation for her opposition to Defendants’
various discriminatory acts and omissions and her participation in proceedings alleging
charges of race, gender, and retaliation discrimination . . . ,” (Id., ¶ 219, PageID 345), there
are no allegations about defendants other than Del Vecchio engaging in any actionable
conduct aimed at or affecting Keegan. The claim does not allege what protected activity
Keegan engaged in, when she did so, what retaliatory or other actionable conduct defendants engaged in, or when that conduct occurred. Consequently, the tendered amended
complaint fails to give any defendant, other than, arguably, Del Vecchio, fair notice of the
claim pleaded against them.
Retaliation-Discrimination-Harassment-Loss of Tangible Job Benefits. This claim is
alleged in ¶¶ 229-32 of the tendered amended complaint. (Id., PageID 346-47.) The claim is
that “Defendants[’] various acts and omissions towards plaintiff constitute retaliation and
retaliatory harassment in violation of O.R.C. § 4112.02(I) and O.R.C. § 4112.99.” (Id., ¶ 230.)
Once again, the complaint does not allege what protected conduct Keegan engaged in,
when she did so, what action(s) any individual defendant took to retaliate, when they did
so, and the like. The tendered amended complaint fails to give fair notice of Keegan’s
claim.
71

Conclusion. Counsel for plaintiffs has repeatedly failed to provide complaints
which comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure
despite several Orders requiring him to do so. I recognize that the tendered amended complaint contains allegations that Del Vecchio told Autrey, Johnson, and perhaps others to
seat non-Caucasian patrons in non-Caucasian seating areas and Caucasians in Caucasian
seating areas and to assign non-Caucasians to serve non-Caucasian patrons. However,
there are no factual allegations meeting the requirements of Rule 8(a) that a complaint give
defendants fair notice of the claim against them regarding the individual server plaintiffs.
There are conclusory allegations that there were race targeted employees and lifestyle
targeted employees, but no facts pleaded, even as examples, about how Del Vecchio or
Myers acted to subject those plaintiffs to discrimination, harassment, or retaliation. As a
result, I RECOMMEND that plaintiffs’ claims for violation of the FLSA and breach of
contract for wages and benefits, plaintiff Autrey’s claims for hostile work environment
against defendants Del Vecchio, Food Concepts International, LP, and Abuelo’s International LP, and plaintiff Johnson’s claim for discrimination, segregation of separation
against defendants Del Vecchio, Food Concepts International, LP, and Abuelo’s International LP proceed. It is FURTHER RECOMMENDED that all other claims for Retaliation-Discrimination in Violation of O.R.C. §4112.02(1) and O.R.C. §4112.99; Retaliation -42
U.S.C. §1981; Aiding, Abetting and Interference- Discrimination in Violation of O.R.C.
§4112.02(1) and O.R.C. §4112.99; Discrimination, Segregation or Separation because of
Ancestry, Color, National Origin, Race or Religion- Harassment-Hostile Work Environ72

ment; and, Retaliation - Discrimination - Harassment - Loss of Tangible Job Benefits be
DISMISSED with PREJUDICE for counsel’s failure to tender amended complaints meeting
the fair notice requirements of Rule 8(a), Fed. R. Civ. P.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court,
specifically designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b), Fed.
R. Civ. P.
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474 U.S.
140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981); United States v.
Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

73