Barrow v. Living Word Church et al

Filing 87

REPORT AND RECOMMENDATIONS - Judged under the Iqbal/Twombly standard, the Second Amended Complaint does not state a claim for relief against the Cashland Defendants. It is therefore respectfully recommended that the Second Amended Complaint be dismi ssed as to those Defendants with prejudice. The dismissal should be with prejudice because Plaintiff has been given ample opportunity to amend to properly assert any viable claims. Objections to R&R due by 8/22/2016. Signed by Magistrate Judge Michael R. Merz on 8/3/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SAMUEL BARROW,
Plaintiff,

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vs

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Case No. 3:15-cv-341

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

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LIVING WORD CHURCH, et al.,

Defendants.

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REPORT AND RECOMMENDATIONS

This case is before the Court on Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) of
Defendants’ Cashland Financial Services, Inc.; Cash America International, Inc.; and Jack
Daugherty (collectively the “Cashland Defendants”)(ECF No. 70). Plaintiff opposes the Motion
(ECF No. 82) and the time for the Cashland Defendants to file a reply in support has expired.
Thus the Motion is ripe for decision.
Because the Motion is dispositive within the meaning of 28 U.S.C. § 636(b), an assigned
Magistrate Judge is to file a report and recommended disposition.

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STANDARD FOR MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been restated by the Supreme
Court:
Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he
pleading must contain something more ... than ... a statement of
facts that merely creates a suspicion [of] a legally cognizable right
of action”), on the assumption that all the allegations in the
complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“Rule 12(b)(6) does not
countenance ... dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very
remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, “‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by the
parties and the court.’” 5 Wright & Miller § 1216, at 233-234 (quoting
Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii
1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336,
125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161
L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289
F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation)
(“[S]ome threshold of plausibility must be crossed at the outset before a
patent antitrust case should be permitted to go into its inevitably costly
and protracted discovery phase”).
Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and
specifically disapproving of the proposition from Conley that “a complaint should not be
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dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief”); see also Association of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). In Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all
areas of federal law and not just in the antitrust context in which it was announced.
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)(on a motion to dismiss, courts “are not bound to accept as true
a legal conclusion couched as a factual allegation.”)

To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to "state a claim to relief that is
plausible on its face." [Twombly], at 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929. 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, 127 S. Ct.
1955, 167 L. Ed. 2d 929. 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, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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 555, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (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"
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(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, 127 S. Ct. 1955, 167 L. Ed. 2d 929. 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 well-pleaded 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 wellpleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to
relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lambert v. Hartman, 517 F.3d 433, 439 (6th
Cir. 2008), citing League of United Latin Am. Citizens. v. Bredesen, 500 F.3d 523, 527 (6th Cir.
2007)(stating allegations in a complaint “must do more than create speculative or suspicion of a
legally cognizable cause of action; they must show entitlement to relief”); see further Delay v.
Rosenthal Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009), Tam Travel, Inc. v. Delta
Airlines, Inc. (In re Travel Agent Comm’n Antitrust Litig.), 583 F.3d 896, 903 (6th Cir. 2009),
New Albany Tractor v. Louisville Tractor, 650 F.3d 1046 (6th Cir. 2011).

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Analysis

The only claims made against the Cashland Defendants arise under Ohio law and are
within this Court’s supplemental jurisdiction under 28 U.S.C. § 1367 (See Second Amended
Complaint, ECF No. 63, ¶ 1, PageID 467). A federal court exercising supplemental or diversity
subject matter jurisdiction over state law claims must apply state substantive law to those claims.
28 U.S.C. § 1652; Gasperini v. Center for Humanities, Inc., 528 U.S. 415, 427, n. 7 (1996); Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938). In applying state law, the Sixth Circuit follows
the law of the State as announced by that State's supreme court. Savedoff v. Access Group, Inc.,
524 F.3d 754, 762 (6th Cir. 2008); Ray Industries, Inc. v. Liberty Mut. Ins. Co., 974 F.2d 754,
758 (6th Cir. 1992); Miles v. Kohli & Kaliher Assocs., 917 F.2d 235, 241 (6th Cir. 1990). "Where
the state supreme court has not spoken, our task is to discern, from all available sources, how that
court would respond if confronted with the issue." Id.; In re Akron-Cleveland Auto Rental,
Inc., 921 F.2d 659, 662 (6th Cir. 1990); Bailey v. V & O Press Co., 770 F.2d 601 (6th Cir. 1985);
Angelotta v. American Broadcasting Corp., 820 F.2d 806 (1987).
The pleading at issue on the instant Motion is Plaintiff’s Second Amended Complaint
(ECF No. 70). This pleading was filed in response to the Magistrate Judge’s recommendation
that the prior amended complaint be dismissed unless certain identified pleading deficiencies
were cured. Plaintiff asserts the following allegations made in the Second Amended Complaint
act to cure those deficiencies:
49. In February 2014, Ms. Nartker, during the course and scope of
her employment with ABF, and Ms. Moore, during the course and
scope of her employment at Cashland, started company betting
pools regarding Mr. Barrow, referring to him as “Just Another N.”
Specifically, Mr. Barrow states as follows:
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a. Ms. Nartker was a clerk for ABF whose duties included
handling freight bills and coordinating with shippers at ABF’s
business located at 8051 Center Pt. Blvd., Dayton, Ohio 45424.
b. Ms. Moore was a clerk for Cashland whose duties included
coordinating payday loans with customers at Cashland’s business
located at 4977 N. Main Street, Dayton, Ohio 45415.
c. Cashland is a subsidiary of Cash America. The companies
engage in the same line of business, and at times, have had
overlapping directors.
d. During business hours and at in their respective places of
business, Ms. Nartker, with ABF, and Ms. Moore with Cashland
and/or Cash America, distributed the betting pool and acted as the
facilitators of the betting pool for employees of the companies and
circulated the betting pool in hard copy and via email to other
employees as further discussed below.
50. The betting pool itself regarded what would happen upon the
release of the sex video by Ms. Nartker and Ms. Moore that was
stolen from Mr. Barrow. The itemized point system was as
follows:
A. Suicide
B. Destitute and Homeless
C. Alcoholic/drug addict
D. Gay (from pictures appearing on gay porn site)
E. Destroy Reputation

50 points
15 points
15 points
10 points
5 points

A copy of the betting pool from which this is copied is attached as
Exhibit B.
51. Tim Magato, the branch manager at the ABF location where
Ms. Nartker worked in Dayton, and Richard Nartker, Ms.
Nartker’s brother and a trucker for ABF in Dayton, also distributed
the pool within ABF. Mr. Nartker was the “winner” of the betting
pool after it was clear that Mr. Barrow’s career life was destroyed.

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52. Ms. Angela Allen, Ms. Moore’s supervisor at Cashland in
Dayton, Ohio, assisted Ms. Moore with the distribution of the
betting pool to Cashland employees.
53. The initial circulation of the betting pool occurred at the local
and regional level of Cashland and ABF in Ohio, with employees
participating in the pool. With respect to Cashland and Cash
America, this included predominantly loan clerk employees and
upper management discussed below. With respect to ABF, the
employees included predominantly shipping clerks and truckers,
but the pool eventually made its way to participants in ABF’s
headquarters in Fort Smith, Arkansas.
54. Mr. Barrow later learned of the betting pool through mutual
acquaintances of Ms. Nartker and Ms. Moore.
55. Mr. Barrow then complained via email, letters sent via U.S.
mail, and oral communications regarding the betting pool to the
following management at Cashland and/or Cash America: Jack
Daugherty, Founder and Chairmain [sic] of the Board of Cash
America, located in Fort Worth Texas, Daniel Feehan, Executive
Chairman of the Board of Cash America, located in Fort Worth,
Texas, Angie Allen, Ms. Moore’s direct and regional supervisor
with Cashland, located in Dayton, Ohio, and Brad Shipp in public
relations with Cash America, located in Forth [sic] Worth, Texas.
56. Mr. Barrow complained via email, letters sent via U.S. mail,
and oral communications regarding the betting pool to Roy Slagel,
President of ABF, located in Fort Smith, Arkansas, David Evans,
Vice President and Chairman of ABF, located in Forth [sic] Smith,
Arkansas, and Judy McReynolds, Chairman, located in Fort Smith
Arkansas, as well as to Tim Magato, Director of Operations in
Dayton, Ohio.
57. Nobody at Cashland, Cash America, or ABF made any effort to
stop the betting pool, despite Mr. Barrow’s complaints. Instead, at
least Mr. Daugherty, Mr. Feehan, Mr. Magato, and Ms.
McReynolds found the betting pool humorous, concluded that it
promoted camaraderie among employees, and intentionally
allowed the betting pool to continue within their respective
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companies. Cashland and/or Cash America also sent Mr. Barrow a
letter refusing to address the concerns Mr. Barrow had raised. ABF
never responded in writing to Mr. Barrow’s inquiries.
58. Mr. Daugherty, Founder and Chairman of the Board of Cash
America, stated on a phone call with Ms. Moore that Mr. Barrow
later learned about through others that he did not care what
happened to Mr. Barrow but did not need “that nigger” Al
Sharpton involved should the matter escalate such that Cash
America’s ability to issue payday loans to minorities might be
impacted.
59. By virtue of the widespread distribution of the betting pool, the
fact that the betting pool was distributed during business hours to
other employees, the participation and support the betting pool
garnered locally and regionally within Cashland, Cash America,
and ABF, and their refusal at a management level to do anything
about the betting pool following complaints while at the same time
viewing it as humorous or beneficial, Cashland, Cash America, and
ABF ratified the racially-motivated betting pool such that they are
responsible for the actions and consequences of their employees.
(Quoted at ECF No. 82, PageID 625-28.)
The parties agree that the claims purported to be stated against the Cashland Defendants
are for wrongful intrusion invasion of privacy and intentional infliction of emotional distress.

Invasion of Privacy by Wrongful Intrusion

As noted above, Erie Railroad requires us to employ Ohio law in evaluating the claims
made in the Second Amended Complaint. The Cashland Defendants assert the elements of the
tort of invasion of privacy by wrongful intrusion are set out in Haller v. Phillips, 69 Ohio App.
3d 574 (10th Dist. 1990). That court in turn cites ¶ 2 of the syllabus in Housh v. Peth, 165 Ohio
St. 35 (1956), as follows:
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The Ohio Supreme Court first recognized an actionable right of
privacy in Housh v. Peth (1956), 165 Ohio St. 35, 59 O.O. 60, 133
N.E.2d 340. Paragraph two of the syllabus in Housh provides:
"An actionable invasion of the right of privacy is the unwarranted
appropriation or exploitation of one's personality, the publicizing
of one's private affairs with which the public has no legitimate
concern, or the wrongful intrusion into one's private activities in
such a manner as to outrage or cause mental suffering, shame or
humiliation to a person of ordinary sensibilities."
Subsequent opinions of the Supreme Court have adopted the
reasoning of the Restatement of Torts. See Sustin v. Fee (1982), 69
Ohio St.2d 143, 23 O.O.3d 182, 431 N.E.2d 992. The Restatement
of the Law 2d, Torts (1977) 376, Section 652A provides four
theories of liability based upon an intrusion of one's right of
privacy. Liability may be predicated on an unreasonable intrusion
upon the other's right to seclusion, misappropriation of another's
name or likeness, unreasonable publicity given to another's private
affairs, or liability under a false light theory. The present action
represents an attempt to impose liability based upon the first
predicate, an unreasonable intrusion.
Section 652B of the Restatement applies to this cause of action and
states that:
"One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person."
The Supreme Court echoed this reasoning in Housh, supra, when it
wrote that "* * * the wrongful intrusion into one's private activities
* * * [must be] * * * in such a manner as to outrage or cause
mental suffering, shame or humiliation to a person of ordinary
sensibilities." Id. at paragraph two of the syllabus.
Id. at 577-78.

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The Second Amended Complaint does not allege acts on the part of the Cashland
Defendants which actively intruded on Mr. Barrow’s privacy. Even as to Ms. Moore, the nowdismissed originating tortfeasor, the pleading does not allege she intruded on Mr. Barrow’s
privacy with the betting pool. Rather ¶ 54 alleges “Mr. Barrow later learned of the betting pool
through mutual acquaintances of Ms. Nartker and Ms. Moore.”

In other words, someone

unnamed in the pleadings told Mr. Barrow what was going on. There is no allegation that person
was somehow acting as an agent of Ms. Moore and reporting her behavior to Mr. Barrow in
order to intrude on his privacy.
Furthermore, the allegation that the betting pool was started by Nartker and Moore in the
course of their employment is purely conclusory. See ¶ 49. The business of the Cashland
Defendants as alleged in the Second Amended Complaint is making payday loans to consumers.
Nothing in the Second Amended Complaint alleges the companies are regularly engaged in
running any sort of gambling business. Not everything an employed person does during business
hours and on the employer’s property is done in the course and scope of employment. For
example, betting on the NCAA basketball finals is well known to occur in federal courthouses, to
the point that streaming of those games has been known at times to degrade network services
whose used is supposed to be limited to court work. Yet no law clerk or courtroom deputy or
indeed federal judge has “basketball watching or betting” as part of their job description and it
certainly does not advance the work of the courts.
Both parties recognize that intentional torts by employees are outside the scope of
employment and therefore not imputable to the employer in the absence of ratification. (Motion,
ECF No. 70, and Memo in Opp., ECF No. 82, both citing Amato v. Heinika Ltd., Case No.
84479, 2005-Ohio-189, 2005 Ohio App. LEXIS 206 (8th Dist. Jan. 20, 2005). To show that he

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has pleaded facts sufficient to show ratification, Plaintiff relies further on Fulwiler v. Schneider,
104 Ohio App. 3d 398 (1st Dist. 1995). In that case a bouncer for a bar assaulted and seriously
injured a patron in the course of escorting him out of the bar at closing and refusing to authorize
a free cab ride. The bar owner was sued on a ratification theory. The court of appeals found the
following evidence of ratification sufficient for submission to the jury:
[I]n this case appellee's evidence, if believed, showed not only that
appellants continued to employ Gardner, but that (1) Caddy's
employees allowed Gardner back into the bar through the locked
front door after the assault; (2) they attempted to sneak Gardner
out of the back door into a truck while wearing a red Caddy's
jacket; (3) they would not allow a police officer to enter the
building immediately after the incident; (3) neither Gardner nor
any other employee was ever suspended or disciplined in any way
for the assault; and (4) Gardner continued to work in the same
capacity as a bouncer after this incident. Therefore, there was
evidence from which reasonable minds could conclude that
appellants ratified Gardner's action and an instruction on
ratification was justified.
Id. at 407. That is to say, Gardner had committed the criminal offense of felonious assault and
his fellow employees tried to protect him from the consequences of his crime with the police.
Despite the fact that Gardner was regularly employed as a bouncer and his acts in part furthered
the business of the bar owner by enforcing his policy about free cab rides and removing people
from the bar when it closed, he was not scheduled to work that night and the jury found he was
acting outside the scope of his employment. Id. at 404. The court of appeals agreed that
continued employment of Gardner as a bouncer was not alone sufficient for ratification.
In this case Daugherty was advised by Barrow of racist conduct by a Cashland employee,
Ms. Moore (and perhaps of behavior by Moore’s supervisor that abetted Moore). Allegedly he
found “the betting pool humorous, concluded that it promoted camaraderie among employees,

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and intentionally allowed the betting pool to continue.” (Second Amended Complaint at ¶ 49).
Absent an admission by Daugherty, the first two of these are Plaintiff’s conclusions about
Daugherty’s state of mind. Assuming the truth of those allegations, the law does not hold people
liable for having bad thoughts. The third is an omission to act, i.e., a failure to discipline
employees for engaging in offensive racist conduct. If Barrow were a fellow employee of Moore
at Cashland, he might have a good claim against Cashland under Title VII for maintaining a
racially hostile workplace, but that is not what is involved here.

Intentional Infliction of Emotional Distress

In recognizing the tort of intentional infliction of emotional distress in Ohio, the Ohio
Supreme Court adopted Restatement of the Law 2d, Torts 2d, § 46, and comment “d” to that
section which reads:
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 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
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law to intervene in every case where someone'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. See Magruder, Mental
and Emotional Disturbance in the Law of Torts, 49 Harvard Law
Review 1033, 1053 (1936).
Yeager v. Local Union 20, 6 Ohio St. 3d 369, 374-75 (1983)abrogated on other grounds by
Welling v. Weinfeld, 113 Ohio St. 3d 464 (2007).
In order to recover on an action for the intentional infliction of serious emotional distress
four elements must be proved: 1) that the actor either intended to cause emotional distress or
knew or should have known that actions taken would result in serious emotional distress to the
plaintiff; 2) that the actor's conduct was so extreme and outrageous, that it went beyond all
possible bounds of decency and that it can be considered utterly intolerable in a civilized
community; 3) that the actor's actions were the proximate cause of the plaintiff's psychic injury;
and 4) that the mental anguish suffered by the plaintiff is serious and of a nature that no
reasonable person can be expected to endure it. Miller v. Currie, 50 F.3d 373 (6th Cir. 1995);
Pyle v. Pyle, 11 Ohio App. 3d 31, 34 (Cuyahoga Cty. 1983) (citation omitted); Bellios v. Victor
Balata Belting Co., 724 F. Supp. 514, 520 (S.D. Ohio 1989).

Ohio courts have found far more egregious statements than those
made by Abrams to fall below the "outrageous" threshold. See,
e.g., Curry v. Village of Blanchester, 2010 Ohio 3368, ¶¶ 54-55
(Ohio Ct. App. 2010) (where the supervisor told the plaintiff, in
front of her colleagues, that she was "all tits and no brain");
Lombardo v. Mahoney, 2009 Ohio 5826, ¶ ¶10-11 (Ohio Ct. App.
2009) (where the supervisor called the plaintiff a "cock sucking
mother fucker").
Colston v. Cleveland Pub. Library, 2013 U.S. App. LEXIS 7690, 19-20 (6th Cir. 2013).

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Here as with the invasion of privacy claim, there is no allegation that any of the Cashland
Defendants did anything to insult Mr. Barrow or inflict emotional damage on him by bringing
the betting pool to his attention. Rather the Second Amended Complaint alleges the betting pool
actually existed and someone who is not named brought it to Mr. Barrow’s attention. Likewise,
even assuming for the sake of argument that calling Al Sharpton a “nigger” might be tortious if
Mr. Daugherty had done it directly to Mr. Barrow, that is not what is alleged. Rather it is alleged
the offensive epithet was spoken in a telephone conversation between Mr. Daugherty and Ms.
Moore, a conversation to which Mr. Barrow was not a party.
For the reasons given above with respect to the invasion of privacy tort, there is also no
respondeat superior liability on the intentional infliction of emotional distress claims.

Conclusion

Judged under the Iqbal/Twombly standard, the Second Amended Complaint does not state
a claim for relief against the Cashland Defendants. It is therefore respectfully recommended that
the Second Amended Complaint be dismissed as to those Defendants with prejudice. The
dismissal should be with prejudice because Plaintiff has been given ample opportunity to amend
to properly assert any viable claims.
August 3, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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