Littlejohn v. Montgomery County Treasurer

Filing 12

ENTRY AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS 8 : The Court finds the Plaintiff has stated claims to relief that is plausible on its face in regards to her Title VII and state law retaliation allegations, a s well as her race discrimination resulting in a failure topromote claim, DENYING the Defendant's motion to dismiss. However, because she has not stated a claim that meets the Twombly standard in regards to onstructive discharge, the Court GRANTS Defendant's motion to dismiss. Signed by Judge Thomas M. Rose on 7/5/2017. (ep)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

Katherine Littlejohn,
Plaintiff,
v.

Case No. 3:16-cv-00350
Judge Thomas M. Rose

Montgomery County Treasurer
Defendant.

ENTRY AND ORDER DENYING IN PART AND
GRANTING IN PART DEFENDANT’S MOTION TO
DISMISS, ECF. 8.

Plaintiff Katherine Littlejohn filed a First Amended Complaint against Defendant
Montgomery County Treasurer for Title VII Retaliation, Retaliation pursuant to Ohio Revised
Code §4112.02, Race Discrimination resulting in a failure to promote, and Constructive
Discharge (ECF. 7). Pending before the Court is Defendant’s Motion to Dismiss these claims
(ECF. 8). Defendant requests that the Court dismiss Plaintiff’s claims for a failure to state a
claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
(ECF. 8). Because the Twombly pleading standard is only plausibility, the Court will deny in part
and grant in part.

I.

INTRODUCTION

According to the First Amended Complaint, Plaintiff Katherine Littlejohn (“Ms.
Littlejohn”), an African American female, was employed by Defendant Montgomery County

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Treasurer’s office (“Defendant”) starting in December 2004, and ending at some point in the
second half of 2016 (ECF.7, pg. 2). During her time of employment, Ms. Littlejohn held various
positions including “Supervisor” and “Analyst 2” (ECF. 7, pg. 3). In February 2014, Ms.
Littlejohn claims to have reported to her supervisor, Georgia Johnson, that a female co-worker
was consistently talking about her own breasts. Ms. Littlejohn alleges the conversations that her
co-worker was having made her feel uncomfortable because she believed it was inappropriate for
the work environment (Id.). After getting what she considered to be an unsatisfactory response
from her direct supervisor, Ms. Littlejohn then relayed the complaint to Paul Robinson, a
supervisory member of the administration (Id.). As before, she told the supervisor that the
repeated discussion of breasts was inappropriate for the workplace (Id.). According to Ms.
Littlejohn, Robinson said, “people are saying that Georgia [Johnson] is treating you differently.
Why don’t you quit?” (Id.).
Following the conversations with her superiors, Ms. Littlejohn claims that she suffered
retaliation in the form of verbal and physical harassment from co-workers, as well as verbal and
physical harassment from her supervisor, Georgia Johnson (Id. at 4). Again, Ms. Littlejohn went
to Paul Robinson to report the situation and tell him that she was being retaliated against. This
time, according to the complaint, Robinson told her, “Stop making accusations or I will call the
prosecutor’s office,” and “Don’t come complaining to me if it doesn’t have to do with money or
a customer again.” (Id.).
In June 2015, Littlejohn filed a complaint with the Equal Opportunity Employment
Office regarding the harassment and retaliation (Id.).
She then filed a second complaint of discrimination with the Equal Opportunity
Employment Office in December 2015 because she believed she did not receive a promotion due

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to her race. (Id.). In 2015, Ms. Littlejohn applied for the position of “Assistant Treasurer” with a
hand-delivered letter of interest to Paul Robinson (Id. at 7). After not hearing back from
Robinson, she then emailed another letter of interest to Treasurer Rice (Id.). Ms. Littlejohn was
not hired for the position, and ultimately it was filled by a Caucasian male, allegedly with less
experience than the Plaintiff (Id.).
Finally, on May 13, 2016, Ms. Littlejohn was allegedly involved in an altercation with
her supervisor, Georgia Johnson, while at work. Both parties screamed within inches of each
other’s face, and Ms. Littlejohn was placed on administrative leave.

II.

MOTION TO DISMISS STANDARDS

Defendant, Montgomery County Treasurer, has filed a motion to dismiss Plaintiff
Katherine Littlejohn’s suit claiming that she has failed to plead sufficient facts in support of her
Title VII and analogous state law claims. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a
party may move to dismiss a complaint for “failure to state a claim upon which relief can be
granted.” In order to survive a motion to dismiss, the complaint must "contain sufficient factual
matter… to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). The complaint does not
need to establish a probability of success at further stages of the case, it needs only to give the
defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Witte v.
Rippe & Kingston Sys., 358 F. Supp. 2d 658, 661 (S.D. Ohio 2005). While a complaint attacked
by a Fed. R. Civ. P. 12(b)(6) motion to dismiss does not require detailed factual allegations, “a
plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do…

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Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 548.
III.

DISCUSSION

A. Motion to Dismiss Title VII and State Retaliation Claims
In her complaint (ECF. 7) and subsequent briefs (ECF. 10), Plaintiff avers that as a result
of reporting what she believed to be a co-worker’s inappropriate sexual behavior to her
supervisor, she was subjected to retaliation in the form of bullying, yelling, intimidation,
reduced/poor evaluations, reduced responsibilities, and was placed on administrative leave.
In response, Defendant urges that Ms. Littlejohn has not done enough to survive this
motion to dismiss. In their motion (ECF. 8), Defendant demands that Ms. Littlejohn make out a
prima facia case for her federal and state law retaliation claims in order for them to survive.
Defendant believes that Plaintiff must demonstrate that (1) she was engaged in activity protected
by Title VII; (2) that she was the subject of adverse employment action; and (3) that there exists
a causal link between this protected activity and the adverse action of her employer. Jackson v.
RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir. 1984). That standard is too exacting.
An employment discrimination complaint, in order to survive a 12(b)(6) motion to dismiss, need
not include such facts as to prove a prima facia case. Instead it must contain only "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc.
8(a)(2). Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002).
The Supreme Court in Twombly did not require a heightened pleading standard. It
required a Plaintiff to state a plausible claim, and Ms. Littlejohn went beyond that in regards to
her retaliation claims. On pages 3-4 of her complaint Ms. Littlejohn laid out factual allegations
that raised the right to relief above the speculative level. She alleges that she went to her

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supervisor with a complaint about inappropriate sexual behavior, and because of that she
suffered retaliation (ECF. 7 pg. 3). This Court makes no findings or predictions about the
outcome of this case moving forward, but does find that Ms. Littlejohn has shown “sufficient
factual matter… to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
Accordingly, Defendant’s motion to dismiss the state and federal retaliation claims is DENIED.

B. Motion to Dismiss Constructive Discharge Claim
Plaintiff also alleges that she was constructively discharged. “To demonstrate a
constructive discharge, the plaintiff must adduce evidence to show that (1) the employer
deliberately created intolerable working conditions, as perceived by a reasonable person, and (2)
the employer did so with the intention of forcing the employee to quit.” Logan v. Denny's, 259
F.3d 558, 559 (6th Cir. 2001) (quoting Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th
Cir. 1999)). Both the intent of the employer and the employee’s objective feelings are to be
considered. When determining whether the first prong is met, the Sixth Circuit has adopted seven
factors to guide the analysis: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to
encourage the employee's resignation; or (7) offers of early retirement or continued employment
on terms less favorable than the employee's former status. Id. at 569.
Turning to the analysis of the factors for this case, the Court finds that Ms. Littlejohn’s
complaint does not allege any facts that would even plausibly make a case for constructive
discharge. At all times relevant to this case, Ms. Littlejohn was employed as an “Analyst 2,” so
there was no demotion (factor 1), and no allegations of a reduction in salary (factor 2), or of

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reduction in job responsibilities (factor 3). There is also no allegation that she was assigned to do
menial or degrading work (factor 4), and she was supervised by Georgia Johnson during the
duration of the time in question, so she was not reassigned to work under a younger supervisor
(factor 5). Additionally, there are no allegations of early retirement offers or continued
employment on less favorable terms than was previously enjoyed (factor 7). Plaintiff does,
however, allege some facts that could possibly be construed as badgering, harassing, or
humiliating, but there is nothing offered to show that her employers engaged in those actions to
encourage that she resign (factor 6). Even assuming arguendo that her employer did badger,
harass, or humiliate her in order to produce a resignation, the manner in which Plaintiff describes
circumstances to meet only one out of seven factors does not adequately demonstrate that a
reasonable person would believe that her employer created intolerable working conditions.
Finding that Ms. Littlejohn cannot meet the first step of the constructive discharge
analysis, there is no need to delve into step two, which is whether or not the employer created an
intolerable work environment with the intention of forcing the employee to quit. Id. at 559. A
complaint “should be dismissed for failure to state a claim only where ‘it appears beyond a doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief’” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1189 (6th Cir. 1996) quoting
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, Defendant’s motion to dismiss the
constructive discharge claim is GRANTED.

C. Motion to Dismiss Claim of Race Discrimination Resulting in a Failure to
Promote
Defendant also contends that Ms. Littlejohn has not sufficiently pleaded a claim for
failure to promote. To establish a failure to promote claim, a plaintiff must be able to show "(1)
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she is a member of a protected class; (2) she applied for and was qualified for a promotion; (3)
she was considered for and was denied the promotion; and (4) an individual of similar
qualifications who was not a member of the protected class received the job at the time plaintiff's
request for the promotion was denied." White v. Columbus Metro. Hous. Auth., 429 F.3d 232,
240 (6th Cir. 2005). In the motion to dismiss, Defendant takes issue with Ms. Littlejohn’s ability
to meet these standards, but again, Twombly only requires plausibility. Plaintiff is an African
American female, meeting the first element. According to the alleged facts in her complaint, Ms.
Littlejohn hand delivered her application and letter of interest for the “Assistant Treasurer”
position to one supervisor and then emailed the same to Treasurer Rice. (ECF. 7, pg. 6-7).
Additionally, the fact that she was previously offered the job of “Assistant Treasurer” helps to
establish that she could plausibly meet the second element (ECF. 7, pg. 3). The third element,
(she was considered for and was denied the promotion), can plausibly be seen by the fact that
after she hand delivered the application, she did not get the promotion, and the fourth element (a
person who was not a member of a protected class received the job) can be seen with the
Plaintiff’s contention that a white male was offered the job.
Ms. Littlejohn will have to come forward with more evidence at a later stage of this
process to be successful on her claim, but as an initial matter, to survive this 12(b)(6) motion to
dismiss, she has reached the plausibility threshold required by Twombly. Accordingly,
Defendant’s motion is DENIED.
CONCLUSION
GRANTING IN PART and DENYING IN PART
Considering the facts of the complaint in the light most favorable to Ms. Littlejohn, the
Court finds that she has stated claims to relief that is plausible on its face in regards to her Title

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VII and state law retaliation allegations, as well as her race discrimination resulting in a failure to
promote claim, thus the Court will DENY the Defendant’s motion to dismiss (ECF. 8) as to
those. However, because she has not stated a claim that meets the Twombly standard in regards to
constructive discharge, the Court GRANTS Defendant’s motion to dismiss.1

/s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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The Court acknowledges the valuable contribution of judicial extern John M. Lintz in drafting this opinion.

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