Varney v. InfoCision, Inc. et al

Filing 38

OPINION AND ORDER granting in part and denying in part 17 Defendant's Motion to Dismiss. Plaintiff's claim of constructive discharge in violation of the public policy manifested in O.R.C. §4112.02 is DISMISSED. Plaintiffs' claim s of intentional infliction of emotional distress, defamation and loss of consortium are likewise DISMISSED. Plaintiff's claim of constructive discharge in violation of the public policy manifested in Ohio Const. art. I, §16 may proceed. Signed by Magistrate Judge Norah McCann King on 10/2/2013. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SONYA M. VARNEY, et al.,
Plaintiffs,
vs.

Civil No. 2:13-cv-346
Magistrate Judge King

INFOCISION, INC., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of Defendants’
Motion to Dismiss Plaintiffs’ First Amended Complaint (“Motion to
Dismiss”), Doc. No. 17, Plaintiffs’ Memorandum of Law and Response to
Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint
(“Plaintiffs’ Response”), Doc. No. 26, and the reply, Doc. No. 34.1
For the reasons that follow, the Motion to Dismiss is GRANTED in part
and DENIED in part.
I.

Background
The Amended Complaint, Doc. No. 13, contains the following

allegations.

Plaintiff Sonya M. Varney (“plaintiff” or “plaintiff

Varney”) was employed by defendant InfoCision, Inc., from September 5,
2000, through August 2010, when she “voluntarily ceased employment.”
Id. at ¶¶ 5-6.

Plaintiff returned to work for defendant in July 2011

as a Human Resources Coordinator.
1

Id. at ¶¶ 7, 26.

Plaintiff was

The Amended Complaint, Doc. No. 13, names as defendants InfoCision, Inc., and
InfoCision Management Corporation, but describes the latter as a “registered
. . . trade name of Defendant InfoCision, Inc. . . . “ Amended Complaint, ¶
3. The Court will therefore refer to defendants collectively as “InfoCision,
Inc.” or “defendant.”

pregnant when she returned to work and was told that she “did not
qualify for FMLA, but that the company would grant her 12 weeks of
leave.”

Id. at ¶ 7.

Plaintiff gave birth on August 21, 2011, and

returned to work on November 1, 2012, at the request of her immediate
supervisor, Dana Wherley.

Id. at ¶¶ 8-10.

In November 2011, two female employees expressed their concerns
to plaintiff about discrimination based on their sex and/or age.
at ¶ 11.

Id.

Plaintiff “was concerned and consulted her husband,

[plaintiff] Donald Varney, a licensed attorney, regarding whether it
was legal for an employer to retaliate against employees for reporting
discrimination.”

Id.

Donald G. Varney “urged [plaintiff] to report

any such accusations and informed [plaintiff] that InfoCision could be
liable if such employee concerns were not reported and/or if those
employees reporting discrimination were retaliated against.”

Id.

Plaintiff then reported the alleged discrimination to Dana Wherley and
Jill Avery, employees of defendant.

Id.

On January 19, 2012, plaintiff was given a “verbal warning for
attendance” and was “counseled and received a verbal warning for
allegedly “shar[ing] ‘confidential information’ with her husband” and
“instruct[ing] employees to come directly to her with any reports of
problems with their manager, Dan Nettinger.”

Id. at ¶ 13.

When

giving the verbal warning, “Carla Grasso raised her voice on numerous
occasions and basically would not allow Plaintiff Varney to speak.”
Id.

The warning was also given without following “standard protocol”

and with knowledge that plaintiff was undergoing treatment for postpartum depression.

Id.

2

Following that verbal warning, “[t]he office staff began
communicating with Plaintiff Varney primarily by e-mail and phone, she
was no longer invited to eat lunch with them, and she was left out of
everyday conversations which before she had been previously included
in.”

Id. at ¶ 14.

Certain employees would ask plaintiff to

communicate with them only by e-mail; other employees would not
communicate with plaintiff “without a witness being present.”

Id.

Prior to and after the warning, an administrative employee “began
eavesdropping on Plaintiff Sonya Varney’s telephone calls and employee
conversations” and “plunder[ing] through work documents in Plaintiff
Sonya Varney’s office.”

Id. at ¶ 15.

Dan Nettinger allegedly

withheld “incident sheets” from plaintiff “for several days” and then
reported plaintiff for not completing work associated with the
incident sheets in a timely manner.

Id. at ¶ 16.

On the day

following the verbal warning, plaintiff applied for a human resources
position with defendant and “later received a rejection letter
regarding the position.”

Id. at ¶ 18.

On January 23, 2012, the verbal warning was reduced to writing.
Id. at ¶ 19.

The written warning specified a procedure to be followed

for reporting concerns about Dan Nettinger and supervisors and stated
the following: “[T]here have not been any issues with your general
day-to-day tasks.

Please understand that while I know that you have

the necessary skills to perform your job, you must show immediate
improvement in maintaining confidentiality, as well as a positive
environment.”

Id.

Plaintiff “took this statement, and the treatment

of her by Defendants immediately prior to and after her verbal

3

warning, to indicate that her job was in jeopardy.”

Id.

On February 21, 2012, plaintiff contacted Human Resources
concerning her verbal warning.

Id. at ¶ 21.

Plaintiff disputed the

allegations of misconduct made in the verbal warning and detailed the
previously reported discrimination and the “different treatment she
was receiving from co-workers after the verbal warning.”
(emphasis in original).

Id.

Plaintiff also “reported that it is obvious

that the confidentiality of her verbal warning was compromised by
managers and others . . . based on such treatment.”

Id.

Plaintiff

was later “informed that her verbal warning had been withdrawn,” “that
she was not being written up,” and that “the company had made a
mistake and that Plaintiff Varney did qualify for FMLA.”

Id. at ¶¶

22-23.
Plaintiff “ceased being an employee of Defendants on May 31, 2012
. . . [because she] felt that she had no option but to resign due to
the hostile treatment she endured by Defendants.”
II.

Id. at ¶ 25.

Standard
A motion to dismiss under Rule 12(b)(6) attacks the legal

sufficiency of the complaint.

See Roth Steel Prods. v. Sharon Steel

Co., 705 F.2d 134, 155 (6th Cir. 1983).

In determining whether

dismissal on this basis is appropriate, a complaint must be construed
in the light most favorable to the plaintiff, and all well-pleaded
facts must be accepted as true.

See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.
Supp. 734, 738 (S.D. Ohio 1994).

The United States Supreme Court has

explained that, “once a claim has been stated adequately, it may be

4

supported by showing any set of facts consistent with the allegations
in the complaint.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”

Id. at 555.

“Factual allegations

must be enough to raise a right to relief above the speculative
level[.]”

Accordingly, a complaint must be dismissed if it does

Id.

not plead “enough facts to state a claim to relief that is plausible
on its face.”

Id. at 570.

III. Discussion
Plaintiff’s first cause of action alleges wrongful constructive
discharge in violation of public policy.

Plaintiff specifically

maintains that defendant constructively discharged her in violation of
the public policy reflected in O.R.C. § 4112.02 and Article I, Section
16 of the Ohio Constitution.

Amended Complaint, ¶¶ 27-32.

To prevail on this claim, plaintiff must first prove that she was
constructively discharged from her employment.

Ohio courts2

apply an objective test in determining when an employee was
constructively discharged, viz., whether the employer’s
actions made working conditions so intolerable that a
reasonable person under the circumstances would have felt
compelled to resign.
Mauzy v. Kelly Servs., Inc., 75 Ohio St. 3d 578, 588-89 (1996)
(citations omitted).

“In applying this test, courts seek to determine

whether the cumulative effect of the employer’s actions would make a
reasonable person believe that termination was imminent.”

2

Id. at 589.

Because this is a diversity action, the Court must apply Ohio law in
evaluating the sufficiency of plaintiffs’ claims. Miller v. Currie, 50 F.3d
373, 377 (6th Cir. 1995).

5

The test is based on a reasonable person; employees therefore have an
obligation to act reasonably and “not to assume the worst[] and . . .
jump to conclusions.”

See Farris v. Port Clinton Sch. Dist., No. OT-

05-041, 2006 WL 964719, at *14 (Ohio Ct. App. Apr. 14, 2006) (citing
Mayo v. Kenwood Country Club, Inc., 731 N.E.2d 190 (Ohio Ct. App.
1999)).
In order to prevail on this claim, plaintiff must also prove that
her discharge violated public policy.

Specifically, plaintiff must

establish:
(1) [A] clear public policy manifested in a statute,
regulation or the common law; (2) that discharging an
employee under circumstances like those involved would
jeopardize the policy; (3) that the discharge at issue was
motivated by conduct related to the policy; and (4) that
there was no overriding business justification for the
discharge.
Knox v. Neaton Auto Prods. Mfg., Inc., 375 F.3d 451, 460 (6th Cir.
2004) (citing Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134,
151 (1997)).

See also Leininger v. Pioneer Nat’l Latex, 115 Ohio St.

3d 311, 313 (2007) (citing Collins v. Rizkana, 73 Ohio St. 3d 65, 6970 (1995)).

The first two elements are questions of law to be

determined by the court; elements three and four are questions of fact
to be decided by the trier of fact.

Leininger, 115 Ohio St. 3d at 313

(citing Collins, 73 Ohio St. 3d at 70).
The Amended Complaint alleges that “[a] clear public policy
exists and is manifested in O.R.C. [§] 4112.02 making it unlawful for
employers to discriminate against persons ‘with respect to hire,
tenure, terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment.”

6

Amended Complaint, ¶

28.

Section 4112.02 provides in relevant part:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion,
sex, military status, national origin, disability, age, or
ancestry of any person, to discharge without just cause, to
refuse to hire, or otherwise to discriminate against that
person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or
indirectly related to employment.

O.R.C. § 4112.02(A).

Section 4112.02 does not render unlawful all

discrimination related, directly or indirectly, to employment.
Rather, § 4112.02 prohibits – and creates a clear public policy
against — only employment discrimination based on race, color,
religion, sex, military status, national origin, disability, age, or
ancestry.

See e.g., Leininger, 115 Ohio St. 3d at 314-15 (finding a

clear public policy against age discrimination in the employment
setting).
Plaintiffs’ Response clarifies that plaintiff does not claim
membership in any of the classes listed in and protected by §
4112.02(A); rather, plaintiff alleges that she was retaliated against
for reporting sex and age discrimination against other employees of
defendant.

Plaintiffs’ Response, pp. 7-8; Amended Complaint, ¶ 11.

Retaliation for reporting discrimination, plaintiff argues, violates
the public policy, reflected in § 4112.02, that encourages “making a
report of discrimination against a manager.”
pp. 7-8.

Plaintiffs’ Response,

Plaintiff also argues that a common-law public policy in

this regard is particularly applicable because O.R.C. Chapter 4112
does not provide a remedy for individuals who report discrimination
against, not themselves, but another person.

7

Id. at p. 7. Defendant

argues that plaintiff’s public policy claim premised on § 4112.02
fails as a matter of law because “Chapter 4112 provides protection and
remedies to individuals who have been discriminated against, as well
as those who oppose discrimination.”
n.7.

Motion to Dismiss, pp. 8-9, p. 9

This Court agrees.
“[I]t is well-established that wrongful discharge in violation of

state public policy claims fail where other statutes provide adequate
protection and remedies.”

Chenzira v. Cincinnati Children’s Hosp.

Med. Ctr., No. 1:11-CV-917, 2012 U.S. Dist. LEXIS 182139, at *11-12
(S.D. Ohio Dec. 27, 2012) (citations omitted).

See also Tripp v.

Buckeye Ranch, No. 2:09-CV-827, 2010 U.S. Dist. LEXIS 40017, at *5
(S.D. Ohio Apr. 23, 2010); Breech v. Scioto Cnty. Reg’l Water Dist. #
1, No. 1:03-CV-360, 2006 U.S. Dist. LEXIS 58545, at *27 (S.D. Ohio
Aug. 21, 2006).

There is simply “̔no need to recognize a common-law

action for wrongful discharge’ if ‘the sole source of the public
policy opposing the discharge is a statute that provides the
substantive right and remedies for its breach.’”

Akatobi v. Aldi,

Inc., No. 2:09-CV-1028, 2010 U.S. Dist. LEXIS 32020, at *7-8 (S.D.
Ohio Mar. 31, 2010) (quoting Wiles v. Medina Auto Parts, 96 Ohio St.
3d 240, 244 (Ohio 2002)).

“̔[W]hen a statutory scheme contains a full

array of remedies, the underlying public policy will not be
jeopardized if a common-law claim for wrongful discharge is not
recognized based on that policy.’”

Id. (quoting Leininger, 115 Ohio

St. 3d at 317).
As discussed supra, plaintiff contends that she was retaliated
against for reporting sex and age discrimination against other

8

employees.

This conduct, i.e., opposing conduct that violates O.R.C.

Chapter 4112, directly implicates the rights and remedies established
by O.R.C. § 4112.02.

Specifically, § 4112.02(I) makes it unlawful

“[f]or any person to discriminate in any manner against any other
person because that person has opposed any unlawful discriminatory
practice defined in this section[.]”

Moreover, O.R.C. § 4112.99

“makes violators of R.C. Chapter 4112 ‘subject to a civil action for
damages, injunctive relief, or any other appropriate relief,’”
Leininger, 115 Ohio St. 3d at 318 (quoting O.R.C. § 4112.99), “for any
form of discrimination identified in the chapter.”

Id. (citing Elek

v. Huntington Nat’l Bank, 60 Ohio St. 3d 135 (1991)).

In other words,

O.R.C. Chapter 4112 provides “broad” statutory remedies, id. at 31718, for retaliation against employees who oppose unlawful age and sex
discrimination in the workplace.

The public policy underlying Chapter

4112 will therefore not be jeopardized even in the absence of a common
law claim for wrongful discharge based on the public policy reflected
in O.R.C. § 4112.02.

Accordingly, the Court declines to recognize

plaintiff’s claim premised on a violation of the public policy
manifested in O.R.C. § 4112.02.
Plaintiff’s first cause of action also alleges wrongful
constructive discharge in violation of public policy as manifested in
the “Open Courts” provision of the Ohio Constitution, Ohio Const. art.
I, § 16.

Amended Complaint, ¶¶ 27-32.

The Open Courts provision

provides in pertinent part: “All courts shall be open, and every
person, for an injury done him in his land, goods, person or
reputation, shall have remedy by due course of law, and shall have

9

justice administered without denial or delay.”

Ohio Const. art. I, §

16.
The Amended Complaint alleges that plaintiff
consulted her husband, Donald Varney, a licensed attorney,
regarding whether it was legal for an employer to retaliate
against employees for reporting discrimination. Plaintiff
Donald Varney urged Plaintiff Sonya Varney to report any
such accusations and informed her that InfoCision could be
liable if such employee concerns were not reported and/or
if those employees reporting discrimination were retaliated
against.
Amended Complaint, ¶ 11.

Plaintiff reported alleged discrimination

against other employees in November 2011 and, she alleges, she was
“counseled and received a verbal warning” on January 19, 2012 for,
inter alia, “shar[ing] ‘confidential information’ with her husband.”
Id. at ¶¶ 11, 13.

The Amended Complaint details the resulting

“hostile treatment” that plaintiff allegedly endured as a result of
contacting an attorney, and alleges that plaintiff’s constructive
discharge was motivated by “conduct related to the[] [Open Courts
provision]” and jeopardizes the Open Courts provision.
25, 29-30.

Id. at ¶¶ 13-

These allegations are, in the view of this Court,

sufficient to state a colorable claim of wrongful constructive
discharge in violation of public policy against defendant.

See Noble

v. Brinker Intern., Inc., 175 F. Supp. 2d 1027, 1043 (S.D. Ohio 2001)
(“Ohio’s Open Courts provision discourages retaliation by employers
against employees who consult attorneys . . . .”); Abrams v. Am.
Computer Tech., 860 N.E.2d 123, 130-31 (Ohio Ct. App. 2006) (finding
that Ohio public policy protects an individual’s right to consult with
an attorney about access to legal redress for injuries done to the
individual) (citing Chapman v. Adia Servs., Inc., 688 N.E.2d 604 (Ohio

10

Ct. App. 1997)); Simonelli v. Anderson Concrete Co., 650 N.E.2d 488,
492 (Ohio Ct. App. 1994) (“[W]e conclude that the act of firing an
employee for consulting an attorney could serve as the basis for a
public policy exception to the common-law employment-at-will
doctrine.”).
The Amended Complaint also asserts state law claims for
intentional infliction of emotional distress, defamation, and loss of
consortium.

Each claim will be addressed in turn.

To establish a claim for intentional infliction of emotional
distress under Ohio law, a plaintiff must allege facts showing that
(1) defendants either intended to cause emotional distress,
or knew or should have known that their conduct would
result in serious emotional distress to plaintiff; (2)
defendants’ conduct was so extreme and outrageous as to go
beyond all possible bounds of decency and was such that it
can be considered utterly intolerable in a civilized
community; (3) defendants’ conduct was the proximate cause
of plaintiff’s psychic injury; and (4) plaintiff suffered
serious emotional distress, such that no reasonable person
could be expected to endure it.
Bragg v. Madison, 20 F. App’x 278, 285-86 (6th Cir. 2001) (citing Roe
v. Franklin Cnty., 673 N.E.2d 172, 180 (Ohio Ct. App. 1996)).

See

also Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (citing Hanly
v. Riverside Methodist Hosp., 603 N.E.2d 1126, 1132 (Ohio Ct. App.
1991)).
In the case presently before the Court, plaintiff alleges that
she was given a verbal warning and that the person giving the warning
“raised her voice on numerous occasions and basically would not allow
Plaintiff Varney to speak.”

Amended Complaint, ¶ 13.

After the

warning, “office staff began communicating with [plaintiff] primarily
by e-mail and phone, she was no longer invited to eat lunch with them,

11

and she was left out of everyday conversations which before she had
been previously included in.”

Id. at ¶¶ 13-14.

One employee

allegedly eavesdropped on plaintiff’s conversations and look through
her work documents; another employee allegedly refused to communicate
with plaintiff in the absence of a witness and allegedly withheld
“incident sheets” for a time and then punished plaintiff for not
timely completing those incident sheets.

Id. at ¶¶ 15-16.

Finally,

plaintiff alleges that she applied for a human resources position with
defendant and “later received a rejection letter regarding the
position.”

Id. at ¶ 18.

Defendant argues that these facts fail to

rise to the level of outrageousness required of a claim of intentional
infliction of emotional distress.

Motion to Dismiss, pp. 11-13.

This

Court agrees.
“Ohio courts define extreme and outrageous conduct exceedingly
narrow[ly].”

Wolfe v. Thermo Fisher Scientific, Inc., No. 2:08-cv-

933, 2009 WL 1255023, at *2 (S.D. Ohio May 4, 2009) (citing Godfredson
v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999) (“[T]o say
that Ohio courts narrowly define ‘extreme and outrageous conduct’
would be something of an understatement.”)).

The Ohio Supreme has

explained:
With respect to the requirement that the conduct alleged be
“extreme and outrageous,” we find comment d to Section 46
of the Restatement, supra, at 73, to be instructive in
describing this standard:
“[]It has not been enough that the defendant has acted with
an intent which is tortious or even criminal, or that he
has intended to inflict emotional distress, or even that
his conduct has been characterized by ‘malice,’ or a degree
of aggravation which would entitle the plaintiff to
punitive damages for another tort.
Liability has been
found only where the conduct has been so outrageous in

12

character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as
atrocious,
and
utterly
intolerable
in
a
civilized
community.
Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’
“The liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or
other trivialities.
The rough edges of our society are
still in need of a good deal of filing down, and in the
meantime plaintiffs must necessarily be expected and
required to be hardened to a certain amount of rough
language, and to occasional acts that are definitely
inconsiderate and unkind. There is no occasion for the law
to intervene in every case where some one’s feelings are
hurt.
There must still be freedom to express an
unflattering opinion, and some safety valve must be left
through which irascible tempers may blow off relatively
harmless steam.”
Yeager v. Local Union 20, 6 Ohio St. 3d 369, 374-75 (Ohio 1983)
(quoting Restatement of the Law 2d, Torts (1965) 71, § 46(1)).

See

also Voyticky v. Vill. of Timberlake, 412 F.3d 669, 678 (6th Cir.
2005) (citing the same passage); Wilson v. Columbus Bd. of Educ., 589
F. Supp. 2d 952, 971 (S.D. Ohio 2008) (same).
In the case presently before the Court, plaintiff has alleged
acts that may be inconsiderate and unkind and which she considers to
be “atrocious” and “intolerable.”

Amended Complaint, ¶ 35.

However,

courts have dismissed claims of intentional infliction of emotional
distress where the plaintiff’s descriptions of the defendant’s conduct
were far more egregious than those raised in this case.

See e.g.,

Wolfe, 2009 WL 1255023 at *2 (finding insufficiently extreme or
outrageous an employer’s sexually-charged remarks, false charge of
sexual harassment and false imprisonment of the plaintiff for four
hours with no food or water while interrogating, intimidating,

13

harassing and embarrassing her); Rubin v. Ford Motor Co., No. 1:04-cv836, 2006 WL 2128934, at *5-6 (S.D. Ohio July 27, 2006) (finding
employer’s “intentional, offensive and unjustified pattern of conduct
(both verbal and physical),” including poking and swearing at the
plaintiff, to be insufficiently extreme or outrageous); Hill v. Vill.
of West Lafayette, No. 95CA27, 1996 WL 487943, at *4-6 (Ohio Ct. App.
May 24, 1996) (finding employer’s false disciplinary charges and
defamatory conduct against plaintiff insufficiently extreme or
outrageous); Baab v. AMR Servs., Corp., 811 F. Supp. 1246, 1269-70
(N.D. Ohio 1993) (finding co-workers’ display of photographs of
scantily clad and naked women and the plaintiff’s receipt of
“pornographic, explicit photographs and sex toys in her locker” not
intolerable in a civilized society and therefore not extreme or
outrageous).

In light of this authority and the relatively mild

allegations of the Amended Complaint, the Court concludes that
defendant’s motion to dismiss plaintiff’s claim of intentional
infliction of emotional distress is meritorious.
Plaintiff’s third cause of action is for defamation. A claim of
defamation under Ohio law includes the following elements:
First, there must be the assertion of a false statement of
fact; second, that the false statement was defamatory;
third, that the false defamatory statement was published by
defendants; fourth, that the publication was the proximate
cause of the injury to the plaintiff; and fifth, that the
defendants acted with the requisite degree of fault.
Voyticky, 412 F.3d at 677-78 (citing Celebreeze v. Dayton Newspapers,
Inc., 535 N.E.2d 755, 759 (Ohio Ct. App. 1988)).
In the case presently before the Court, the Amended Complaint
alleges that “defendants’ false and defamatory statements were of and

14

concerning [plaintiff] and contained the false statement that
[plaintiff] was in some way making complaints about Dan Nettinger in
order to get him in trouble so that [plaintiff] could get Dan
Nettinger’s job.”

Amended Complaint, ¶ 39.

See also id. at ¶ 41.

Plaintiffs’ Response clarifies that the alleged defamatory statement
was made during defendant’s verbal warning to plaintiff.

Plaintiff’s

Response, p. 11.
The allegations in the Amended Complaint may be sufficient to
establish that defendant made a false statement of fact; however,
there is no factual allegation that defendant’s allegedly false
statement was published to a third party.

Plaintiff concluded that

“it is obvious that the confidentiality of her verbal warning was
compromised by managers and others at [defendant’s] Gallipolis, Ohio,
location,”

id. at ¶ 22, but that conclusion says nothing of whether

that particular component of the verbal warning was published to a
third party. Plaintiff also alleges that “Defendants communicated
and/or published or caused these defamatory statements to be
communicated and/or published by failing to conduct an adequate
investigation into the allegations against [plaintiff] and/or failing
to abide by Defendants’ own confidentiality policies.”

Id. at ¶ 38.

However, an alleged failure to investigate the truthfulness of a
statement or to follow one’s own disciplinary policies is simply not
tantamount to the publication of a statement to a third party.

In

short, this Court concludes that the Amended Complaint fails to state
a claim for defamation because it does not identify a specific
defamatory publication to a third party.

15

Finally, the Amended Complaint asserts a loss of consortium claim
on behalf of plaintiff Donald G. Varney:
Plaintiff Donald G. Varney has lost the consortium and
services of his wife, Plaintiff Varney and inasmuch as the
injuries of Plaintiff Varney are permanent and lasting in
nature, Plaintiff Donald G. Varney will continue in the
future to be deprived of the consortium and services of his
wife, Plaintiff Varney.
Amended Complaint, ¶ 47(d).

Defendant argues that a loss of

consortium claim is derivative of a spouse’s claim for bodily injury
and that the Amended Complaint does “not allege[] facts which
constitute any legal cognizable tort committed by InfoCision that
resulted in bodily injury to Plaintiff.”

Defendant’s Motion, p. 19.

Plaintiffs’ Response does not address the loss of consortium claim.
“̔[A] claim for loss of consortium is derivative in that the
claim is dependent upon the defendant’s having committed a legally
cognizable tort upon the spouse who suffers bodily injury.’”

Campbell

v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 790-71 (6th Cir. 2007)
(emphasis in original) (quoting Bowen v. Kil-Kare, Inc., 63 Ohio St.
3d 84 (Ohio 1992)).

See also Blatnik v. Avery Dennison Corp., 774

N.E.2d 282, 297 (Ohio Ct. App. 2002) (holding that a “claim for loss
of consortium . . . cannot stand because there is no evidence of
bodily injury sustained”).

“Ohio courts have repeatedly held that the

term ‘bodily injury’ does not include nonphysical harms.”

Campbell,

509 F.3d at 791 (citations omitted).
In the case presently before the Court, the Amended Complaint
does not allege that plaintiff Sonya M. Varney suffered a bodily
injury as a consequence of defendant’s actions.

Accordingly

defendant’s motion to dismiss plaintiff Donald G. Varney’s loss of

16

consortium claim is meritorious.
WHEREFORE, Defendant’s Motion, Doc. No. 17, is GRANTED in part
and DENIED in part.

Plaintiff’s claim of constructive discharge in

violation of the public policy manifested in O.R.C. § 4112.02 is
DISMISSED.

Plaintiffs’ claims of intentional infliction of emotional

distress, defamation and loss of consortium are likewise DISMISSED.
Plaintiff’s claim of constructive discharge in violation of the public
policy manifested in Ohio Const. art. I, § 16 may proceed.

October 2, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

17