IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRACY ABERNATHY, et al.,

Plaintiffs,

vs. Civil Action 2:10-CV-131

Judge Watson

Magistrate Judge King

CORINTHIAN COLLEGES, INC.,

Defendant.

REPORT AND RECOMMENDATION

This is an employment action in which plaintiffs Tracy Abernathy,

Jennifer Brown, and Lawana Shipley assert claims of sexual harassment

and retaliation under Title VII, 42 U.S.C. §2000e-5. This matter is

before the Court on Defendant Corinthian Colleges, Inc.’s Partial

Motion to Dismiss Claims of Plaintiff Lawana Shipley, Doc. No. 45

(“Motion to Dismiss Shipley Claims”) and Defendant Corinthian

Colleges, Inc.’s Partial Motion to Dismiss, Doc. No. 46 (“Partial

Motion to Dismiss Based on Res Judicata”). For the reasons that

follow, it is RECOMMENDED that defendant’s motions be GRANTED.

I. PARTIAL MOTION TO DISMISS SHIPLEY CLAIMS

All plaintiffs were originally represented by counsel. See

Amended Complaint, Doc. No. 11. Counsel thereafter requested and was

granted, without objection, leave to withdraw on behalf of plaintiff

Shipley. Motion for Leave to Withdraw, Doc. No. 24; Order, Doc. No.

25; Order, Doc. No. 32. Prior to the withdrawal of counsel on behalf

of plaintiff Shipley, however, the Court ordered that plaintiff to

respond to defendant’s discovery requests within 14 days. Opinion and

Order, Doc. No. 29, pp. 4-6. The Court specifically advised plaintiff

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Shipley that her failure to respond to the discovery requests would

result in the imposition of sanctions, including possible dismissal of

her claims against defendant. Id. at 6.1 Defendant represents that

plaintiff Shipley has failed to respond to defendant’s discovery

requests. Plaintiff Shipley has also failed to respond to the Motion

to Dismiss Shipley Claims.2 

Defendant seeks dismissal of plaintiff Shipley’s claims pursuant

to Rule 37(b)(2)(A)(v). That rule provides, in pertinent part, that

“[i]f a party . . . fails to obey an order to provide or permit

discovery . . . the court where the action is pending may issue

further just orders. They may include [an order] . . .dismissing the

action or proceeding in whole or in part . . .” Fed. R. Civ. P.

37(b)(2)(A)(v). Additionally, Rule 41 of the Federal Rules of Civil

Procedure provides: “If the plaintiff fails to prosecute or to comply

with these rules or a court order, a defendant may move to dismiss the

action or any claim against it. . . .” Fed. R. Civ. P. 41(b). 

Dismissal of an action for failure to cooperate in discovery or to

comply with the orders of the court is left to the sound discretion of

the trial court. Harmon v. CSX Transp. Inc., 110 F.3d 364, 366 (6th

Cir. 1997) (citing Reg’l Refuse Sys., Inc. v. Inland Reclamation Co.,

842 F.2d 150, 154 (6th Cir. 1988)). In applying either Rule 37(b)(2)

or Rule 41, the Court must consider four factors: 

1Plaintiff Shipley was thereafter reminded of her obligation in that

regard. Order, Doc. No. 32, p. 1, n.1.

2Efforts to correspond with plaintiff Shipley have been

unsuccessful. Neither the Court nor counsel have a valid address for

her. See Order, Doc. No. 57; Notice, Doc. No. 58; Notice, Doc. No.

59.

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(1) whether the party’s failure to cooperate in discovery is

due to willfulness, bad faith, or fault; (2) “whether the

adversary was prejudiced by the dismissed party’s failure to

cooperate in discovery”; (3) “whether the dismissed party

was warned that failure to cooperate could lead to

dismissal”; and (4) “whether less drastic sanctions were

imposed or considered before dismissal was ordered.”

Harmon, 110 F.3d at 366-67 (quoting Reg’l Refuse Sys., Inc., 842 F.2d

at 153-55). “Although no one factor is dispositive, dismissal is

proper if the record demonstrates delay or contumacious conduct.” 

United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002).

In this case, plaintiff Shipley has failed to comply with her

discovery obligations under the Federal Rules of Civil Procedure and

has not complied with the order of this Court. In light of the

specific warning that her failure to comply with the Opinion and

Order, Doc. No. 29, “will result in the imposition of sanctions,

including the possible dismissal of her claims[,]” the Court must

construe plaintiff Shipley’s failure to respond as willful. Defendant

is prejudiced by this failure because it cannot effectively defend

against plaintiff Shipley’s claims without responses to discovery

requests regarding her claims. The Court is not persuaded that less

drastic sanctions – such as ordering responses yet again – would be

effective in light of plaintiff’s failure to comply with the Court

repeated directives. Under these circumstances this Court concludes

that dismissal of plaintiff Shipley’s claims is an appropriate

sanction. See Harmon, 110 F.3d at 366-67; Reyes, 307 F.3d at 458.

This is particularly so in light of the fact that it appears that

plaintiff Shipley has abandoned her prosecution of the litigation. 

II. PARTIAL MOTION TO DISMISS BASED ON RES JUDICATA

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Defendant has also moved to dismiss plaintiffs’ claim of sexual

harassment/hostile work environment, arguing that the doctrine of res

judicata bars litigation of this claim in this Court. Partial Motion

to Dismiss Based on Res Judicata. Plaintiffs Abernathy and Brown have

filed a notice stating that they will not oppose defendant’s motion,

Doc. No. 55, and plaintiff Shipley has not filed a response to that

motion.

 “Under Ohio law, the doctrine of res judicata consists of the

two related concepts of claim preclusion, also known as res judicata

or estoppel by judgment, and issue preclusion, also known as

collateral estoppel.” Ohio ex rel. Boggs v. City of Cleveland, 655

F.3d 516, 2011 U.S. App. LEXIS 17717, at *6 (6th Cir. Aug. 25, 2011)

(internal quotation marks and citations omitted). “Claim preclusion

prevents subsequent actions, by the same parties or their privies,

based upon any claim arising out of a transaction that was the subject

of a previous action.” Id. Under Ohio law, claim preclusion has four

elements:

(1) a prior final, valid decision on the merits by a court

of competent jurisdiction; (2) a second action involving the

same parties, or their privies, as the first; (3) a second

action raising claims that were or could have been litigated

in the first action; and (4) a second action arising out of

the transaction or occurrence that was the subject matter of

the previous action.

Id. at *7 (quoting Hapgood v. City of Warren, 127 F.3d 490, 493 (6th

Cir. 1997)) (quoting Felder v. Cmty. Mut. Ins. Co., No. 96-3320, 1997

U.S. App. LEXIS 6622, 1997 WL 160373, at *3-4 (6th Cir. April 4,

1997)). 

Plaintiffs previously initiated a separate action against

defendant entitled Tracy Abernathy, et al. v. Corinthian Colleges,

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Inc., et al., Case No. 09CVH06-8483, in the Court of Common Pleas for

Franklin County, Ohio. See Decision and Entry Granting in Part and

Denying in Part Defendant’s Motion for Summary Judgment, Filed

September 8, 2010, attached to the Partial Motion to Dismiss Based on

Res Judicata. In that action, plaintiffs alleged a claim of hostile

work environment sexual harassment arising out of incidents that

allegedly occurred while they were employed by defendant. Id. at 1-9. 

Concluding that plaintiffs’ claim of hostile work environment sexual

harassment failed as a matter of law, the Franklin County Court of

Common Pleas and granted defendant’s motion for summary judgment on

this claim. Id. at 9, 15.

The judgment entered by the Court of Common Pleas for Franklin

County is now a final decision on the merits. The instant action

involves the same parties and raises the same claim of hostile work

environment sexual harassment arising out of incidents that allegedly

occurred during plaintiffs’ employment with defendant. Based on the

present record, plaintiffs’ claim of hostile work environment sexual

harassment is foreclosed from relitigation in this Court. See Ohio ex

rel. Boggs, 2011 U.S. App. LEXIS 17717, at *6. 

WHEREUPON, it is RECOMMENDED that Defendant Corinthian Colleges,

Inc.’s Motion to Dismiss Claims of Plaintiff Lawana Shipley, Doc. No.

45, and Defendant Corinthian Colleges, Inc.’s Partial Motion to

Dismiss, Doc. No. 46, be GRANTED.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

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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); Fed. R. Civ. P. 72(b). Response to objections must

be filed within fourteen (14) days after being served with a copy

thereof. Fed. R. Civ. P. 72(b). 

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 of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

March 9, 2012 s/Norah McCann King 

 Norah McCann King

United States Magistrate Judge

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