UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HARRY WILLIAM LOTT, 

Plaintiff,

Case No. 2:12-cv-608

v. JUDGE GREGORY L. FROST

Magistrate Judge Terence P. Kemp

HAVAR, INC., et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) Defendants’ motion to strike (ECF No. 57); 

(2) Plaintiff’s motion for summary judgment (ECF No. 63), Plaintiff’s memorandum in

support (ECF No. 65), Defendants’ memorandum in opposition (ECF No. 68), and Plaintiff’s

reply memorandum (ECF No. 72); 

(3) Defendants’ motion for summary judgment (ECF No. 70), 

(4) Plaintiff’s March 25, 2013 motion in limine (ECF No. 74) and Defendants’

memorandum in opposition (ECF No. 79); 

(5) Plaintiff’s April 1, 2013 motion for sanctions (ECF No. 80) and Defendants’

memorandum in opposition (ECF No. 81); 

(6) Plaintiff’s May 10, 2013 filings titled “GAG ORDER” (ECF No. 83) and “SLAPP”

(ECF No. 84) and Defendants’ combined response (ECF No. 85);

(7) Plaintiff’s May 14, 2013 motion in limine (ECF No. 86); 

(8) Plaintiff’s May 20, 2013 motion in limine (ECF No. 88), 

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(9) Plaintiff’s May 24, 2013 motion in limine (ECF No. 91) and Defendants’

memorandum in opposition (ECF No. 94); and 

(10) Plaintiff’s May 28, 2013 motions in limine (ECF Nos. 92, 93) and Defendants’

combined memorandum in opposition (ECF No. 95).

For the reasons that follow, the Court DENIES the motion to strike (ECF No. 57),

Plaintiff’s motion for summary judgment (ECF No. 63), and Plaintiff’s motion for sanctions

(ECF No. 80). This Court GRANTS Defendants’ motion for summary judgment (ECF No. 70)

in regard to Plaintiff’s federal claims and declines to exercise supplemental jurisdiction over

Plaintiff’s state law claims, which the Court dismisses without prejudice. The Court DENIES

the remaining motions as MOOT. (ECF Nos. 74, 83, 84, 86, 88, 91, 92, 93.) 

I. Background

Havar, Inc. is a non-profit corporation that provides services and assistance to

developmentally disabled individuals, including operating group homes. One of these homes is

known as Tupper House and is located in Washington County, Ohio. At time of the events

relevant to this litigation, Tupper House provided services to developmentally disabled boys. 

Plaintiff, Harry William Lott, was previously employed at Tupper House as a Resident

Assistant beginning on July 1, 2010. As an employee, Plaintiff underwent training on Havar,

Inc.’s sexual harassment and whistleblower policies. Such training did not inform Plaintiff’s

time as a Tupper House employee as Havar, Inc. likely wished, for Plaintiff’s employment was

marked by numerous incidents.

In May 2011, Havar, Inc. management learned that Plaintiff had given a female coworker

a massage during their shift at Tupper House. Because management was purportedly concerned

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about this conduct in light of Havar, Inc.’s sexual harassment policy, the group home Program

Director, Barbara Mugrage, met with Plaintiff about the incident. Additional sexual harassment

training occurred in early July 2011. This took place according to Havar, Inc.’s Executive

Director, Debbie Schmieding, because management had concerns about Plaintiff’s conduct. 

Despite this training, management received additional reports of alleged misconduct by Plaintiff.

In September 2011, for example, Plaintiff purportedly jumped onto a coworker’s car and

tried to reach into the car through an opening the window while two coworkers sat inside. 

Mugrage attempted to meet with Plaintiff to discuss this incident, but he refused to meet with

her.

In November 2011, management received reports from three different employees that

Plaintiff was engaging in harassing behavior, with much of his conduct directed toward a

coworker, Amanda Metts. During the course of an investigation, Metts informed management

that Plaintiff had jumped on top of her while at work, poking and tickling her; that Plaintiff had

grabbed Metts’ breast; that he had made sexually oriented comments to her; that Plaintiff had

rubbed up against Metts; that he had asked coworkers to date him; and that Plaintiff had boasted

that Havar, Inc. could not “touch” him because he has powerful lawyers.

Toward the end of the month, Schmieding sent Plaintiff a letter informing him that he

had been suspended pending a decision by Havar, Inc.’s Personnel Committee on whether to

accept management’s recommendation that Plaintiff’s employment be terminated. In December

2011, the Personnel Committee met and accepted the termination recommendation, and Plaintiff

subsequently lost his job.

Following his termination, Plaintiff alleged that he was a whistleblower and that he had

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been sexually harassed while at Tupper House. Plaintiff asserts that he had filed a complaint

related to alleged insurance fraud with the Ohio Department of Insurance. He also filed a charge

with the Ohio Civil Rights Commission in which he complained of sexual harassment. 

Eventually, Plaintiff filed this litigation. In his most recent amended complaint, Plaintiff asserts

twelve counts: (1) negligence; (2) “vicarious liability”; (3) retaliation; (4) assault and battery; (5)

negligence per se; (6) mental suffering; (7) defamation; (8) sexual harassment; (9) “failure to

act”; (10) libel; (11) breach of contract; and (12) infliction of mental distress. (ECF No. 59, at

PAGEID # 204-07.) Both Plaintiff and Defendants have filed motions for summary judgment,

which are ripe for disposition. (ECF Nos. 63, 70.) In addition, Defendants have filed a motion

to strike (ECF No. 57) and Plaintiff has filed nine other motions, all of which are also ripe for

disposition (ECF Nos. 74, 80, 83, 84, 86, 88, 91, 92, 93).

II. Motion to strike

On December 3, 2012, Plaintiff filed a third amended complaint. (ECF No. 53.) That

document lacked Plaintiff’s signature. (Id. at PAGEID # 190.) Consequently, Defendants filed a

motion to strike the third amended complaint, citing the lack of a signature and the fact that

Plaintiff had altered content in the pleading in apparent contravention of a prior Order by the

Magistrate Judge. (ECF No. 57.) The Magistrate Judge then issued a December 6, 2012 Order

in which he gave Plaintiff seven days in which to file a signed copy of the amended pleading. 

(ECF No. 58.) Plaintiff filed a signed version of the amended complaint on December 11, 2012. 

(ECF No. 59.)

Plaintiff’s signature mooted one of the two grounds upon which Defendants based their

motion to strike. Their second ground, that the amended complaint violated a prior Order

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prohibiting substantive changes in the pleading, was not expressly discussed in the Magistrate

Judge’s December 6, 2012 Order. This second ground does not provide a basis for striking the

signed amended complaint. 

The Magistrate Judge’s November 5, 2012 Order did not permit substantive changes in

an amended complaint (ECF No. 47), but his December 3, 2012 Order did not include such a

prohibition (ECF No. 51). Additionally, the Magistrate Judge’s December 6, 2012 Order

required only that Plaintiff sign the amended complaint containing the altered date about which

Defendants complain; that Order did not address, much less prohibit, the change in content. 

(ECF No. 58.) The Court concludes that even if Plaintiff got away with changing his pleading, it

would be unfair to strike the offending document now in light of the other more recent Orders

that at least appeared to allow implicitly the changes he made. Moreover, given that the

prejudice to which Defendants point is that the substantive change informs the statute of

limitations for the assault and battery claims over which this Court declines to exercise

supplemental jurisdiction, the pleading changes are ultimately immaterial here.

This Court DENIES the motion to strike. (ECF No. 57.) 

III. Motion for sanctions

Similar to most of his filings, Plaintiff’s motion for sanctions is convoluted and at times

largely incomprehensible. It appears that Plaintiff targets the sufficiency of discovery responses

he received and that he threatens to file a separate action against Defendants’ counsel. (ECF No.

80.) Plaintiff also asks in his motion that this Court enter summary judgment on his Count Nine

claim for “failure to act.” 

Defendants respond by noting that by neglecting to contact their counsel on these issues

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prior to filing for sanctions, Plaintiff has failed to comply with the procedural requirements of

Federal Rule of Civil Procedure 37 and with Local Civil Rule 37.1. Defendants also assert that

they have cooperated fully and in good faith in the discovery process; they point to the

Magistrate Judge’s denial of Plaintiff’s related motion to compel to support their contentions. 

Defendant then address other possible points that Plaintiff may have intended to raise, but

ultimately admit that they “are not sure what Plaintiff is asking for” because “[t]he remainder of

the motion for sanctions is incoherent.” (ECF No. 81, at PAGEID # 755.)

This Court agrees with Defendants that the motion for sanctions fails to present any basis

for sanctions for the reasons that Defendants have presented in their memorandum in opposition. 

Additionally, that portion of Plaintiff’s motion related to summary judgment is an impermissible

end run around the briefing limitations that the Local Civil Rules impose on motions practice. 

No plaintiff can obtain additional summary judgment briefing extrinsic to a motion, supporting

memorandum, and reply memorandum without leave of this Court. See S. D. Ohio Civ. R.

7.2(a). 

The Court DENIES the motion for sanctions. (ECF No. 80.) 

IV. Motions for summary judgment

A. Standard involved

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion

for summary judgment if the nonmoving party who has the burden of proof at trial fails to make

a showing sufficient to establish the existence of an element that is essential to that party’s case. 

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See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Plaintiff’s motion

On February 4, 2013, Plaintiff filed a motion for summary judgment. (ECF No. 63.) 

Plaintiff erroneously states that the motion is based on Federal Rule of Civil Procedure 57, which

is concerned with declaratory judgments, and Local Civil Rule 55.1(b), which is concerned with

show cause orders for failure to pursue a default judgment. Regardless of the flawed reference to

inapplicable rules, the actual problems with Plaintiff’s motion are at least twofold.

First, Plaintiff filed a memorandum in support of his motion on February 14, 2013. (ECF

No. 65.) This filing violated the Local Civil Rule requirement that a memorandum in support

must accompany its motion. See S. D. Ohio Civ. R. 7.2(a)(1). By filing his memorandum ten

days after filing his motion–and without having obtained leave of this Court to do so–Plaintiff

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has improperly presented this Court with an untimely memorandum in support that the Court

will not consider.

Second, as Defendants correctly state in their memorandum in opposition, Plaintiff “has

not satisfied his initial burden pursuant to Fed. R. Civ. P. 56 to inform the court of the basis for

his motion nor has he identified portions of the record that demonstrate the absence of a genuine

dispute over material facts.” (ECF No. 68, at PAGEID # 240.) Although cognizant of Plaintiff’s

pro se status and therefore affording Plaintiff’s filing the most charitable constructions possible,

this Court must agree with Defendants. At best, Plaintiff’s motion hints at legal theories based

on unauthenticated exhibits, but it does not present cohesive arguments tied to admissible

Federal Rule of Civil Procedure 56 evidence to obtain the summary judgment requested. This

flaw foils Plaintiff’s pursuit of summary judgment because, as the Court has previously noted,

“[t]his Court is in the business of resolving the legal arguments presented to it, not in creating a

party’s inferred argument for him and then passing judgment on it.” Lyon v. Yellow Transp.,

Inc., No. 2:08-cv-464, 2009 WL 1604807, at *15 (S.D. Ohio June 8, 2009). See also Versatile

Helicopters v. City of Columbus, 879 F. Supp. 2d 775, 782 (S.D. Ohio 2012).

The Court DENIES Plaintiff’s motion for summary judgment. (ECF No. 63.)

C. Defendants’ motion 

Defendants Havar, Inc., Debbie Schmieding, Barbara Mugrage, Sarah Stoneking,

Amanda Metts, and Lindsay Adams have filed a joint motion for summary judgment. (ECF No.

70.) This motion presents two threshold issues that require discussion. First is the issue of

whether all of the movants are actually defendants in this litigation or whether the sole named

defendant is Havar, Inc.

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The individuals identified above argue that they are not defendants in this litigation

because Plaintiff has failed to serve them, they have never waived service or authorized anyone

to accept service on their behalf, and they have repeatedly raised the service issue in responding

to the various complaints filed since the inception of this case. They correctly note that Plaintiff

has listed his own name and Vincent, Ohio address on summons forms for Metts and Stoneking,

as opposed to utilizing their respective addresses. (ECF No. 3, at PAGEID # 6, 11.) Plaintiff

then used an Athens, Ohio address on summons forms for Stoneking, Mugrage, Schmieding, and

Adams–the same address, and not an address at which any of these individuals live. (Id. at

PAGEID # 7-10.) Some of these individuals have submitted affidavits in support of their lack of

service argument. (ECF Nos. 70-1 ¶ 6, 70-2 ¶ 15, 70-3 ¶ 17.) This lack of proper service of

process warrants the dismissal of any claims against Metts, Stoneking, Mugrage, Schmieding,

and Adams. See Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 624-25 (6th

Cir. 2004).

Moreover, this Court recognizes that Plaintiff has failed to name Metts, Stoneking,

Mugrage, Schmieding, and Adams as defendants in the operative amended complaint. Although

the caption of the December 11, 2012 amended complaint indicates multiple defendants, neither

the caption nor the body of that pleading name these individuals as defendants. (ECF No. 59.) 

A simple “et al.” is insufficient. Plaintiff apparently thinks that he has named multiple

defendants–his own motion for summary judgment seeks judgment against “the defendants”–but

the lack of specificity in his pleading is significant. (ECF No. 63, at PAGEID # 222.) This

Court cannot say that the December 11, 2012 amended complaint even asserts claims against

Metts, Stoneking, Mugrage, Schmieding, and Adams. Thus, the only defendant involved in this

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litigation is Havar, Inc. 

The second threshold issue necessitating mention is what claims are involved in the

motion for summary judgment. As noted, the operative amended complaint asserts twelve

counts. Havar, Inc. points to an issue with two of the counts. Count Two purports to present a

claim for “vicarious liability,” while Count Nine purports to present a claim for “failure to act.” 

(ECF No. 59, at PAGEID # 2, 4.) Havar, Inc. offers in its motion that because neither count

asserts claims recognized under applicable law, it address the allegations of these counts within

the context of other counts that do present relevant claims. This is a logical approach.

Also involved in ascertaining what claims are at issue is Plaintiff’s unspecific pleading. 

In Count Eight, Plaintiff asserts a sexual harassment claim and explicitly cites Title VII. He

describes the claim as “Hostile Environment harassment: pervasive unwelcome sexual conduct

ridicule unreasonably interferes with an individual’s job performance or creates an intimidating,

hostile, or offensive working environment, even if no tangible or economic consequences result.” 

(ECF No. 59, at PAGEID # 206.) This unquestionably presents a Title VII sexual

harassment/hostile work environment claim.

Havar, Inc. suggests that it may be questionable, however, whether Plaintiff intended

Count Eight to include a sexual harassment claim under Ohio law. Correctly noting that the

amended complaint makes no reference to Ohio law, Havar, Inc. suggests that if the Court

construes the pleading to present an analogous Ohio claim, Havar, Inc. should prevail on such a

claim because the federal and state analyses are the same.

The is no basis for concluding that Plaintiff has asserted the corresponding state law

harassment claim. Plaintiff fails to direct this Court explicitly or by implication to Ohio Revised

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Code § 4112.02, which would be the applicable state law in regard to his sexual harassment

allegations. But Plaintiff’s reference to Ohio Revised Code § 2913.47 in Count Five of the

operative amended complaint demonstrates that he is fully capable of relying on and pleading a

state statute. The only logical inference is that Plaintiff has not asserted a sexual harassment

claim under Ohio law. The Court therefore recognizes that Count Eight presents only a Title VII

claim.

Perhaps a more complicated inquiry exists in regard to Count Three. In that count,

Plaintiff asserts a retaliation claim. Presented without correcting or noting any errors, Count

Three reads as follows:

1. All of the laws that are enforced make it illegal to fire, demote, harass, or

otherwise “retaliate” against people applicants or employees because they filed a

charge of discrimination because they complained to their employer o other covered

entity about discrimination on the job, or because they participated in an employment

discrimination proceeding (such as an investigation or lawsuit). 

1. Wanting an EEOC investigation.

2. Filling out an insurance fraud report over the jumping on the car.

3. Wanting to fill out a workers comp clam over a hit in the groin.

4. Getting a lawyer to write to Debbie Schmieding.

5. Talking about the lawsuit on facebook, which led to a libel tort.

(ECF No. 59, at PAGEID # 204-05.) The question is whether this presents a federal retaliation

claim, a state law retaliation claim, or both. Giving Plaintiff the benefit of the doubt and reading

Count Eight and its express reliance on Title VII as informing Count Three, the Court will accept

that Plaintiff has asserted a federal retaliation claim. 

Even if this Court is mistaken as to the scope of Counts Three and Eight, the Court notes

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that such error cannot be said to prejudice Plaintiff. This Court’s election not to address any

state law claims following the failure of the federal claims discussed below means that it does

not matter whether Plaintiff intended to assert corresponding state law harassment and retaliation

claims. 

This Court shall proceed to address the federal claims, starting with Count Eight first. 

Title VII provides that “[i]t shall be an unlawful employment practice for an employer...to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex . . . or to limit, segregate, or

classify his employees ... in any way which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his status as an employee, because of

such individual’s . . . sex . . . .” 42 U.S.C. §§ 2000e-2(a)(1)-(a)(2). 

To prove discrimination in the form of a hostile work environment, Plaintiff must show

that 

(1) [he] was a member of a protected group, (2) [he] was subjected to unwelcome

harassment, (3) the harassment was based upon the employee’s . . . gender, (4) the

harassment affected a term, condition, or privilege of employment, and (5) the

defendant knew or should have known about the harassing conduct but failed to take

any corrective or preventive actions. Williams v. Gen. Motors Corp., 187 F.3d 553,

560-61 (6th Cir. 1999) (discussing the requirements for proving a hostile work

environment claim based upon gender); Moore v. KUKA Welding Sys. & Robot.

Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999) (setting forth the elements of a prima

facie case for a claim of a hostile work environment based upon race).

Howard v. Bd. of Educ. of Memphis City Sch., 70 F. App’x 272, 281 (6th Cir. 2003) (citing

Farmer v. Cleveland Pub. Power, 295 F.3d 593, 604-05 (6th Cir. 2002)). The Sixth Circuit has

further explained that a Title VII plaintiff must show that 

the workplace is permeated with discriminatory intimidation, ridicule, and insult that

is sufficiently severe or pervasive to alter the conditions of the victim’s employment

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and create an abusive working environment . . . . Conduct that is not severe or

pervasive enough to create an objectively hostile or abusive work environment–an

environment that a reasonable person would find hostile or abusive–is beyond Title

VII’s purview. Likewise, if the victim does not subjectively perceive the

environment to be abusive, the conduct has not actually altered the conditions of the

victim’s employment, and there is no Title VII violation.

Virgilio v. Potter, 59 F. App’x 678, 681 (6th Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21-23 (1993)) (internal quotes and citations omitted); see also Howard, 70 F. App’x at

282. 

The touchstone of a hostile work environment claim is thus proof that “the workplace is

permeated with ‘discriminatory intimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe

or pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.’ ” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 65 (1986)). There is both a subjective and an objective prong to this

standard. In other words, “the conduct must be severe or pervasive enough to create an

environment that a reasonable person would find hostile or abusive, and the victim must

subjectively regard that environment as abusive.” Black v. Zaring Homes, 104 F.3d 822, 826

(6th Cir. 1997) (citing Harris, 510 U.S. at 21-22). Consequently, the question before the Court

is whether a reasonable person would have found Plaintiff’s work environment to be hostile or

abusive.

In answering this question, the Court must consider various factors including “[t]he

frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.” Harris, 510 U.S. at 23. Although the work environment as a

whole must be viewed by the Court, including all alleged acts of harassment or abuse, if such

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acts are irregular and sporadic rather than continuous and frequent, it is much more difficult to

prove a hostile work environment claim. See id. This is because “not all workplace conduct that

may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within

the meaning of Title VII.” Meritor Sav. Bank, FSB, 477 U.S. at 67. For example, “simple

teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (internal citations omitted).

Havar, Inc. argues that the conduct about which Plaintiff complains is simply not sexual

harassment. The employer notes that although Plaintiff complains that coworkers spread rumors

about him, Plaintiff refused to tell his supervisor the content of these rumors and now asserts that

he cannot recollect the substance of these rumors. Moreover, Plaintiff found the rumors

humorous while he was employed. Plaintiff simply did not report other incidents to his

employer, and even regarded some of those incidents as not offensive. Havar, Inc. also notes

that Plaintiff complains that a coworker would not talk to him, that a coworker reported that

Plaintiff used the shower while at work, that coworkers reported that Plaintiff jumped on another

employee’s car, and that a coworker taught a developmentally disabled adolescent to say “Harry

dirty” in sign language. Another coworker allegedly posted disparaging remarks on Facebook

about Plaintiff’s sister.

None of this appears to have anything to do with Plaintiff’s gender. Plaintiff has failed to

file a memorandum in opposition to Havar, Inc.’s motion for summary judgment, which means

that Plaintiff has failed to direct this Court to any evidence connecting the foregoing conduct to

his gender. Necessarily construing the evidence in a light most favorable to Plaintiff, the Court

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concludes that the conduct complained of does not rise to the level of harassing or discriminatory

conduct presenting a hostile work environment. The distinct incidents about which Plaintiff

complains are often so discrete and are so lacking in severity that they could hardly be regarded

under the totality of the circumstances as permeating the workplace with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to affect Plaintiff as he

claims to have been affected. 

This is not to say that Plaintiff was without any amount of cause to find the manner in

which he was at times treated or the manner in which other employees interacted with him

upsetting. But upsetting does not always equal unlawful. Plaintiff must recognize that Title VII

does not exist to ensure that everyone who works together enjoys one another’s company or

personality. Title VII is simply not a general civility code. See Faragher, 524 U.S. at 788

(“These standards for judging hostility are sufficiently demanding to ensure that Title VII does

not become a ‘general civility code.’ ”). See also Black, 104 F.3d at 826 (“Title VII was ‘not

designed to purge the workplace of vulgarity’ ” (quoting Baskerville v. Culligan Int’l Co., 50

F.3d 428, 430 (7th Cir. 1995))). Thus, the relatively meager instances of discourtesy or rudeness

involved here cannot be confused with serious harassment or discrimination premised upon

impermissible grounds such as gender. See Faragher, 524 U.S. at 787. While not excusing the

treatment or behavior reflected in the evidence, the Court must nonetheless recognize that the

instances of asserted impropriety do not amount to discriminatory changes in the terms and

conditions of Plaintiff’s employment. See id. at 788. There is simply no basis for linking any of

the treatment about which Plaintiff complains to gender, and none of this conduct was severe and

pervasive. 

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Undisputed evidence indicates that it was at times Plaintiff who was engaging in poor

behavior related to gender, such as when he grabbed a female coworker’s breast while on top of

her; when he stood up, he apparently had an erection. Plaintiff claims that this coworker struck

him the groin while he was “playing” with her. Plaintiff did not report this incident to Havar.

Inc. until he was being suspended for his own poor conduct. Whenever Plaintiff actually

divulged the details of his complaints to his employer during the course of his employment,

Havar, Inc. took corrective action that ended the behavior at issue–just as it did in terminating

Plaintiff’s employment due to his actions. 

This last point is notable because even if Plaintiff had presented a prima facie case of

harassment, Havar, Inc. cut back on his hours, suspended him, and terminated his employment

for legitimate, nondiscriminatory reasons. Schmieding states in her affidavit that the reduction

of hours that Plaintiff experienced was part of a reduction in hours for all Resident Assistants

employed at Tupper House that was attributable to a determination that the residents of that

facility needed less supervision than they had previously required. This is hardly an adverse

action specific to Plaintiff or even employees of his gender. Plaintiff’s inexcusable and often

inexplicable conduct routinely violated his employer’s anti-harassment policies and code of

conduct. Havar, Inc. has presented affidavit evidence from supervisors indicating that this is

why the employer suspended and then terminated Plaintiff. Plaintiff has presented this Court

with no evidence suggesting even a genuine issue of fact on any of Havar, Inc.’s proffered

reasons. Havar, Inc. is thus entitled to summary judgment on Count Nine. 

This leaves one other federal claim for discussion. Given the prior determination that the

Count Three retaliation claim falls under Title VII, the Court notes that the relevant statute

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provides that 

[i]t shall be an unlawful employment practice for an employer to discriminate against

any of his employees . . . because [the employee] has opposed any practice made an

unlawful employment practice by [Title VII], or because [the employee] has made

a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII]. 

42 U.S.C. § 2000e-3(a). As the employee, Plaintiff has the burden of proving a prima facie case

demonstrating that Havar, Inc. as the employer unlawfully retaliated against him.

To establish a prima facie case of unlawful retaliation under Title VII, Plaintiff must

prove by a preponderance of evidence that: (1) he engaged in a protected activity; (2) Havar, Inc.

knew that he engaged in this protected activity; (3) Havar, Inc. subsequently took an

employment action adverse to Plaintiff; and (4) a causal connection between the protected

activity and the adverse employment action exists. See Abbott v. Crown Motor Co., Inc., 348

F.3d 537, 542 (6th Cir. 2003) (citing Strouss, 250 F.3d at 342 (6th Cir. 2001); Nguyen v. City of

Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). The Sixth Circuit has held after a plaintiff has

proven the existence of a prima facie case, the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the adverse action. Abbott, 348 F.3d at 542 (citing

Nguyen, 229 F.3d at 562). If the defendant can meet this burden, then the burden shifts back to

the plaintiff to demonstrate by a preponderance of the evidence that the defendant’s proffered

reason was mere pretext. Abbott, 348 F.3d at 542 (citing Manzer v. Diamond Shamrock Chems.

Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). If the plaintiff demonstrates that the defendant’s

proffered reasons were pretextual, then the fact finder may infer unlawful retaliation. Abbott,

348 F.3d at 542.

Plaintiff has again failed to evade summary judgment. This Court agrees with Havar,

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Inc.’s argument that the majority of Plaintiff’s complaints could not have caused his reduction in

hours, suspension, and termination because Havar. Inc. only learned about this conduct after

these employment actions. Subsequent knowledge cannot of course provide the causal

connection for prior action. Plaintiff’s failure to report incidents upon which he now relies

precludes crediting Havar, Inc. with having known about the alleged conduct. Additionally, as

discussed above, Havar, Inc. had legitimate reasons for taking the actions against Plaintiff it

took. Plaintiff has failed to call into question those reasons.

Plaintiff has simply failed to present this Court with any argument, much less with any

supporting evidence, as to how Havar, Inc. engaged in retaliation. Havar. Inc. is therefore also

entitled to summary judgment on Count Three.

In light of the failure of Plaintiff’s federal claims, this Court presumptively should not

address his state law claims. See Jackson v. Heh, 215 F.3d 1326, 2000 WL 761807, at *8 (6th

Cir. 2000) (unpublished table decision) (referencing 28 U.S.C. § 1367 and stating that “[w]here,

as here, a federal court has properly dismissed a plaintiff’s federal claims, there is a ‘strong

presumption’ in favor of dismissing any remaining state claims unless the plaintiff can establish

an alternate basis for federal jurisdiction.” (citing Musson Theatrical, Inc. v. Fed. Express Corp.,

89 F.3d 1244, 1255 (6th Cir. 1996))). Plaintiff has failed to assert any justification or alternative

basis for exercising jurisdiction over his remaining claims should the Court grant summary

judgment against him on his federal claims. Therefore, while expressing no opinion on the

merits of the state law claims, the Court dismisses these claims without prejudice. See United

Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (“If the federal claims are

dismissed before trial . . . the state claims should be dismissed as well.”); Brandenburg v.

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Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (“the usual course is for the district

court to dismiss the state-law claims without prejudice if all federal claims are disposed of on

summary judgment”).

The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s federal

claims and DISMISSES Plaintiff’s state law claims WITHOUT PREJUDICE. (ECF No. 70.) 

V. Plaintiff’s miscellaneous motions

Plaintiff has filed a number of documents that he labels motions in limine. (ECF No. 74,

86, 88, 91, 92, 93.) He has also filed a document titled “GAG ORDER” and a document titled

“SLAPP,” which, construed most broadly in Plaintiff’s favor, might be respectively described as

a motion requesting a gag order from this Court and a motion requesting a ruling related to

California law and how Plaintiff perceives it applies in this litigation. (ECF No. 83, 84.) Given

this Court’s disposition of the federal and state law claims discussed herein, all of these

remaining motions are moot. 

The Court therefore DENIES the motions as MOOT. (ECF No. 74, 83, 84, 86, 88, 91,

92, 93.) 

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VI. Conclusion

This Court DENIES Defendants’ motion to strike (ECF No. 57), Plaintiff’s motion for

summary judgment (ECF No. 63), and Plaintiff’s motion for sanctions (ECF No. 80). The Court

GRANTS Defendants’ motion for summary judgment (ECF No. 70) in regard to Plaintiff’s

federal claims, but declines to exercise supplemental jurisdiction over Plaintiff’s state law

claims, which the Court DISMISSES WITHOUT PREJUDICE. This Court DENIES the

remaining motions as MOOT. (ECF Nos. 74, 83, 84, 86, 88, 91, 92, 93.) The Clerk shall enter

judgment accordingly and terminate this case on the docket records of the United States District

Court for the Southern District of Ohio, Eastern Division. 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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