Kendel v. Local 17–A United Food & Commercial Workers

835 F.Supp.2d 421

Tina KENDEL, Plaintiff

v.LOCAL 17–A UNITED FOOD AND COMMERCIAL WORKERS, Defendant.

Case No. 1:10CV02300.

United States District Court,

N.D. Ohio,

Eastern Division.

Dec. 5, 2011.

Edward L. Gilbert, Akron, OH, for Plaintiff.

Jeffery C. Lookabaugh, Schulman Zimmerman & Associates, Brian L. Zimmerman, Canton, OH, for Defendant.

MEMORANDUM OF OPINION AND ORDER (Resolving ECF Nos. 56, 75 and 76)

BENITA Y. PEARSON, District Judge.

I. INTRODUCTION

Before the Court are Plaintiff Tina Kendel's (“Kendel”) Motion for Summary Judgment (as to Defendant's Counterclaim) ( ECF No. 75 ) and Motion to Dismiss Counterclaim ( ECF No. 56 ), and Defendant Local 17–A United Food and Commercial Workers' (referred to as “Local 17A”) Motion for Summary Judgment (seeking judgment in its favor on the entire Complaint and judgment in its favor on its own Counterclaim) ( ECF No. 59 ). After reviewing the motions and the corresponding briefs, the Court grants Kendel's Motion for summary judgment; denies as moot Kendel's motion to dismiss; and denies Local 17–A's motion for summary judgment for the reasons detailed below.

II. FACTS

A. The Gender Discrimination Lawsuit

On or about April 1, 1998, Kendel was hired as an Administrative Assistant by Local 17–A, an affiliated Union under the United Food and Commercial Workers (“UFCW”) of America. ECF Nos. 59 at 9 and 81 at 7. Kendel was later promoted to Secretary/Treasurer. ECF No. 81 at 7. On August 26, 2009, Kendel filed a Complaint in the United States District Court, Northern District of Ohio under Case Number 5:09 CV 1999, against her employer Local 17–A, and its former President, Mr. Barnes, in his individual and official capacity, along with the International UFCW Union. ECF No. 75–1 at 4. In that case, Kendel asserted claims for gender discrimination and alleged that Barnes repeatedly made derogatory comments about women. ECF No. 81 at 7.

1. Un–Redacted Social Security Numbers

After discovery in the gender discrimination lawsuit had concluded, an issue developed as to whether Local 17–A had the requisite number of employees to fall within the purview of Title VII. Defendant filed pleadings indicating that it had only three employees, and therefore was not an employer under the meaning of Title VII. ECF No. 75–1 at 6. In response, Kendel presented documentation to Defendant's counsel negating Defendant's averment, establishing that Local 17–A employed the requisite number of staff. The documents included Local 17 A's payroll records and contained un-redacted security numbers of six of Defendant's employees. ECF No. 75–1 at 6–7.

Although the documents containing the un-redacted social security numbers were never presented during trial as Kendel had intended, Kendel concedes the social security numbers should have been, but were not, redacted before filing the documents which were later placed under seal. ECF No. 77 at 4.

2. Conversion Counterclaim

On March 24, 2010, Local 17–A filed a Motion for Leave to Amend its Answer to add a counterclaim alleging conversion in the gender discrimination lawsuit. ( ECF No. 63, Case Number 5:09 CV 1999.) According to the deposition testimony of Gordon Wise, Former Vice President of Local 17–A, the Conversion Counterclaim was not brought to the Local Board's attention before it was filed. Wise testified that even Sonja Campbell, President of the local Union, informed him that she was also unaware of why the Counterclaim had been filed and indicated that it might have been filed as a “scare tactic.” ECF No. 73 at 7–9. He stated that Campbell told him that after Campbell had reviewed the books, she did not find evidence to support the notion that Kendel had embezzeled or converted funds from Local 17–A. ECF No. 73 at 9. Campbell testified that soon thereafter, she instructed Local 17–A's Attorney, Brian Zimmerman, to withdraw the Counterclaim and he complied. ECF No. 61 at 21.

B. The Retaliation and Defamation (Instant) Lawsuit

According to Gordon Wise's testimony, criticism of Kendel's discrimination lawsuit was raised during both Executive Board and union membership meetings. ECF Nos. 81 at 13; 73 at 37. Wise testified that these meetings often resulted in a “screaming match,” wherein discussions concerning Kendel's lawsuit were “of a negative nature.” ECF No. 73 at 5–6. Wise testified that Union members indicated that Kendel was hurting the union by pursuing her rights in the lawsuit. ECF No. 73 at 20.

President Campbell expressed concern to union members that Kendel's discrimination lawsuit was going to break the union due to the litigation costs and that Kendel was suing individual union members. ECF Nos. 66 at 13, 24–25, 124; 82 at 16; 81 at 17. And, according to Kendel's testimony, Campbell told union members that Kendel was going to take their houses and property. ECF No. 66 at 13–14, 24–25, 124.

Wise also testified that the news of the filing of the Conversion Counterclaim “[spread] like wildfire.” ECF No. 73 at 10. He stated that he heard comments from union members that led him to believe that Kendel's reputation was harmed as a result of Local 17–A's filing. ECF No. 73 at 49.

On January 27, 2011, at the conclusion of trial in the gender discrimination lawsuit, a jury rendered a verdict in favor of Local 17–A. Following the trial, Kendel lost her bid for re-election as Secretary/Treasurer. As a result of not being re-elected, Kendel loss a monthly stipend of $100. ECF Nos. 81 at 14; 66 at 83; 82 at 19.

Prior to the gender discrimination lawsuit going to trial, Kendel filed the instant lawsuit alleging retaliation and defamation, as further discussed below.

III. PROCEDURAL HISTORY

On October 8, 2010, Kendel initiated the instant lawsuit and filed an Amended Complaint on August 10, 2011, in the U.S. District Court of the Northern District of Ohio, alleging that Local 17–A retaliated against her after she filed a complaint for gender discrimination with the Ohio Civil Rights Commission and in Federal Court for the previous discrimination lawsuit, as discussed above. Kendel asserts that the retaliatory acts by Defendant include filing the false Counterclaim, spreading false rumors, intentionally failing to communicate, and campaigning so that she was not re-elected as Secretary/Treasurer. In addition, Kendel alleges that Local 17–A defamed Kendel when it filed the Conversion Counterclaim against her and by spreading false rumors about her. ECF No. 81 at 6. Based upon the foregoing allegations, Kendel asserts three causes of actions: (1) Retaliation under Title VII, (2) Retaliation under Ohio Revised Code § 4112.02, and (3) a state law claim of Defamation. ECF No. 54.

On August 22, 2011, Local 17–A filed an Answer and lodged a counterclaim against Kendel for breach of fiduciary duty based upon its allegation that Kendel copied and removed Local 17–A's documents, containing un-redacted social security numbers of Local 17–A's members, and disseminated that information to third parties during the earlier discussed gender discrimination lawsuit. ECF No. 55 at 6–7.

On August 23, 2011, Kendel filed a motion to dismiss the Breach of Fiduciary Duty Counterclaim, and subsequently moved the Court to grant summary judgment for the same claim. ECF No. 56; ECF No. 75. On September 15, 2011, Local 17–A filed a motion for summary judgment, requesting that the Court dismiss all claims against it and grant judgment in favor of Local 17–A on its counterclaim. ECF No. 59.

IV. STANDARD OF REVIEW

In deciding a motion to dismiss under Rule 12(b)(6), the Court must take all well-plead allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted). “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.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 1950. Despite the overruling of Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), it remains that Fed.R.Civ.P. 8(a)(2), is intended to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Although this pleading standard does not require great detail, the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

To determine whether a claim should proceed, the Supreme Court has set forth a legal “plausibility standard” to assess whether the facts convincingly suggest actionable conduct, rather than merely describing conduct that actually occurred. Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955;seeRakesh N. Kilaru,The New Rule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading, 62 Stan. L.Rev. 905, 910–11 (2010). Applying this standard, district court judges should weigh the facts and determine, when necessary, whether they are sufficient to “nudge [the] claims across the line from conceivable to plausible” based on their “judicial experience and common sense.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955;Iqbal, 129 S.Ct. at 1950. A suit may proceed as long as plaintiff's complaint crosses that threshold. Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

Summary judgment is proper if “there is no genuine issue as to any material fact [and] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). But “summary judgment will not lie if the ... evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In...