This action arises out of Plaintiff Tracy Parker's claims of sex and disability discrimination, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the Americans with Disabilities Act,
I. BACKGROUND
A. Parker discloses her transgender status and is harassed by co-workers.
Parker began working for Strawser as a truck driver in 2009. (Doc. 10, Am. Compl. ¶ 34). In 2012, Strawser promoted Parker to line truck driver. (Id. ¶ 37). Shortly thereаfter, Parker began transitioning her gender from male to female. (Id. ¶¶ 39-40). Although born male, Parker identifies as transgender and was diagnosed by her physician with gender dysphoria in September 2012. (Id. ¶¶ 21-23, 29).
Parker disclosed her gender dysphoria diagnosis and her gender transition to Strawser in September 2012. (Id. ¶ 41). When Parker made this disclosure to her immediate supervisor, Dale Ernst, he stated, "you had better be ready to be picked on." (Id. ¶ 42). Following this disclosure, Ernst began "writing up Parker for allegedly not executing her job duties or for non-existent/minor errors as evidence" (e.g. , errors in her log book), which had not occurred prior to the disclosure. (Id. ¶¶ 47, 49). Other, non-transgender employees were not written up for similar minor or unsubstantiated errors. (Id. ¶ 48).
Parker was also subjected to "constant and continuing harassment" due to her transgender and transitioning status from her co-workers, in particular, Floyd Kеlly and Brian Tucker. (Id. ¶¶ 56-57). Kelly made "repeated derogatory and discriminatory gender, gender identity, and transition comments and jokes" and stated to Parker on multiple occasions that "Kelly believed that Parker was really a male, who was attracted to other males." (Id. ¶¶ 58-59). Kelly and Tucker would make comments such as "[Parker's] performance was typical 'because you [Parker] drive like a woman," and "we have to be really careful of what we say around him," and would purposely misgender Parker (by referring to her with male pronouns). (Id. ¶¶ 60-62).
As part of her job duties, Parker was assigned to share a hotel room with a male co-worker, Ralph Holsinger, in September 2012. (Id. ¶ 64). Kelly made comments stating that Parker and Holsinger were having a sexual relationship and stated to Holsinger that Holsinger was a homosexual due to the rooming arrangеments. (Id. ¶ 64-65). Parker complained to Ernst regarding Kelly's comments, which Parker felt constituted sexual harassment. (Id. ¶¶ 66-67). Directly following Parker's complaint, Kelly's harassment of Parker intensified, and the two ended up in a physical altercation as a result of the harassment. (Id. ¶¶ 68, 71). Only Parker received a negative year-end performance review from Ernst, despite being the target of harassment. (Id. ¶¶ 72-74).
The harassment continued in 2013. During one of Parker's work-related hotel stays, Kelly disclosed to the hotel staff that Parker was transgender, and a hotel staff member "called Parker to the front desk, simply to see what she looked like." (Id. ¶¶ 76-79). On another occasion, Parker walked into a hotel lobby wearing traditionally female clothing, and Kelly stated, "I wish you wouldn't do that because you are making us look bad." (Id. ¶ 80). Kelly further stated on other occasions, "can't you just dress like a man?" and "you make for an ugly woman." (Id. ¶¶ 81-82).
B. Parker's therapist requests accommodations from Strawser on Parker's behalf.
In April 2013, Parker's therapist, Dr. Frederick Peterson, wrote a letter to Freda Grote, Strawser's Human Resources Manager, informing Grote of Parker's gender
At about the same time in April 2013, Parker also disclosed to Grote that Parker would soon begin taking medication (such as hormone treatments) to help her transition her physical gender, and asked whether Parker's medical insuranсe would cover sex reassignment surgery. (Id. ¶¶ 90-93). Grote denied Parker's inquiry, without looking into whether Strawser's medical insurance would cover such a surgery. (Id. ¶ 95).
C. Parker is sexually assaulted by a co-worker.
In July 2013, Parker was sexually harassed and sexually assaulted by a co-worker, Terry Jordan. Parker reported the assault and Strawser immediately terminated Jordan, but other co-workers blamed and harassed Parker for Jordan's termination. (Id. ¶¶ 99-102). On the same day Jordan was terminated, Strawser moved Parker's work station to the workshop, which was viewed by Strawser employees as a form of punishment. (Id. ¶¶ 103-104). Further, following Jordan's termination, Ernst would "scream at Parker on occasion" and "stated that he would treat Parker better if she performed sexual favors." (Id. ¶¶ 106-07). Parker did not solicit any such sexual conduct or activity from Ernst, and asked that he not make such requests. (Id. ¶ 108).
D. La Joye asks Parker to resign.
In spring of 2014, Parker contacted her superintendent, Ben La Joye, and asked if there was anything he could do to curb the harassment. (Id. ¶¶ 114-16). La Joye said there was nothing he could do, and declined her request to rearrange the crew to ensure Parker would no longer have to work with Kelly or Tucker. (Id. ¶¶ 117-18). La Joye told her that "if she was not tough enough to handle the harassment, she was not tough enough to work in construction," and instructed Parker to text him stating that she was resigning. (Id. ¶¶ 119-121).
As instructed, Parker texted her resignation to La Joye, and also sent a message to human resources stating that if Strawser could not remedy the constant sexual harassment, Parker would have to resign. (Id. ¶¶ 122-123). Grote called Parker and asked her to withdraw her resignation and engage in a discussion with La Joye, Grote, and Chris Anspaugh (president of Strawser). (Id. ¶ 124). This meeting was held in May 2014, at which Parker was told that "accommodating transgender employees was а 'work in progress' at Strawser, and that they would attempt to remedy the harassment." (Id. ¶ 125-127). Despite this assertion, Strawser did not take any meaningful measures to end the harassment. (Id. ¶ 128).
E. Parker is demoted and replaced by Kelly.
In June or July 2014, Strawser demoted Parker from her line truck driver position, resulting in a pay cut of approximately $3.00/hour. (Id. ¶¶ 129-30). Strawser placed Kelly in the line truck driver position that Parker previously held, for which Parker alleges Kelly was unqualified. (Id. ¶¶ 131-33). The demotion came two to three months after Parker made protected complaints concerning sexual harassment during her meeting with Grote, La Joye, and Anspaugh. (Id. ¶ 133).
Parker complained about her demotion to Ernst and Grote and stated that she believed Kelly had been treated more favorably
In late August or early September 2014, Ernst screamed and cursed at Parker for making an incorrect entry in her log book (which he did not do with other employees), and later screamed and cursed at Parker again, accusing her of making up her discrimination cоmplaints. (Id. ¶¶ 148-154). Later, Parker sent Ernst a text message asking him to refrain from cursing and yelling at her for minor mistakes. Ernst called Parker in response and told her "be a man" and "act like a man." (Id. ¶¶ 151-152). Parker complained to La Joye about Ernst's conduct, but Ernst received no discipline. (Id. ¶¶ 155-56).
F. Parker is terminated for insubordination.
On October 19, 2014, Michael Zamborski, a project manager for Strawser, instructed Parker to move a loader truck. Parker refused because per Department of Transportation regulations, she would be unable to move the truck without triggering a ten-hour break period as she had already worked a full day. (Id. ¶¶ 158-162). Strawser then terminated Parker's employment for insubordination. (Id. ¶ 163). Strawser's termination letter addressed Parker as "Mr. Parker," which Parker felt constituted sexual harassment. (Id. ¶ 164, 167).
G. Parker files a charge of discrimination with the EEOC.
Following her termination, Parker filed a charge of discrimination with the Equal Employment Opportunity Commissiоn ("EEOC") alleging "discrimination on the basis of sex, disability, and retaliation when [Strawser] subjected her to less favorable terms and conditions of employment, harassment, demotion, and termination." (Doc. 10-2, EEOC Determination Letter at 1). On March 28, 2017, the EEOC issued Parker a determination letter, finding "that the evidence substantiates that [Parker] was harassed on the basis of sex, in violation of Title VII. However, the [EEOC was] unable to conclude that she was sexually harassed, retaliated against, demoted or discharged. The [EEOC] makes no finding regarding the allegation of disability discrimination." (Id. ) Parker received a right to sue letter from the EEOC on April 12, 2017. (Doc. 10-1, Right to Sue Letter).
Parker commenced this action on June 21, 2017, asserting eight counts of discrimination, harassment, and retaliation on the basis of sex under Title VII, disability discrimination under the ADA, and corresponding state law claims under Ohio Revised Cоde Chapter 4112. (Doc. 1, Compl.). She later amended her Complaint on July 17, 2017, to correct an error in Defendant Chris Anspaugh's name. (Doc. 10). All five defendants now move separately
II. STANDARD FOR DISMISSAL UNDER RULE 12(b)(6)
Under the Federal Rules, any pleading that states a claim for relief must contain a "short and plain statement of the claim" showing that the pleader is entitled to such relief. Fed. R. Civ. P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly,
Rule 12(b)(6) allows рarties to challenge the sufficiency of a complaint under the foregoing standards. In considering whether a complaint fails to state a claim upon which relief can be granted, the Court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC ,
III. DISCUSSION
Parker asserts eight claims in her complaint: four against Strawser only (Title VII gender discrimination, Title VII sexual harassment, Title VII retaliation, and ADA disability discrimination) and four against Strawser and all four individual defendants (Chapter 4112 gender discrimination, Chapter 4112 sexual harassment, Chapter 4112 retaliation, and Chapter 4112 disability discrimination). The Court will first consider whether Chapter 4112 imposes individual liability on supervisors and managers like Ernst, Grote, La Joye, and Anspaugh, and then consider whether Parker's gender dysphoria and transgender status qualify her as a member of a protected class under the ADA and Title VII.
A. The individual defendants are not liable under Chapter 4112.
1. The individual defendants are not "employers" for purposes of Parker's discrimination and harassment claims under § 4112.02(A).
Defendants argue that Ernst, Grote, La Joye, and Anspaugh are not proper dеfendants in this action because Chapter 4112 does not impose individual liability on managers and supervisors. Parker argues that each of the individual defendants is subject to liability because R.C. § 4112.02(A) prohibits discrimination by "employers," and the definition of "employer" in Chapter 4112 extends to "any person acting directly or indirectly in the interest of an employer." R.C. 4112.01(A)(2). This stands in contrast to the definition of "employer" under Title VII and the ADA, which extends to "any agent of [an employer]," and which courts
Ohio courts have been less than clear on the existence of individual liability under Chapter 4112. In Genaro v. Cent. Transp., Inc. , the Ohio Supreme Court held that Chapter 4112's definition of "employer" is "much broader in scope than that employed in the analogous Title VII provision," and "by its very terms, encompasses individual supervisors аnd managers whose conduct violates the provisions of R.C. Chapter 4112."
More recently, however, the Ohio Supreme Court determined that Chapter 4112 does not "expressly impose civil liability on political-subdivision employees" so as to exempt them from sovereign immunity. Hauser v. Dayton Police Dep't ,
In the few years since Hauser was decided, courts have applied its holding to bar individual liability for both private- and public-sector employees. See Morningstar v. Circleville Fire & EMS Dep't , No. 2:15-CV-3077,
2. Parker has not alleged material adverse actions taken by any of the individual defendants for purposes of her retaliation claims under § 4112.02(I).
However, not all of Parker's Chapter 4112 claims involve employer discrimination under § 4112.02(A). Parker also alleges that she was retaliated against for making protected complaints about discrimination and harassment on the basis of her sex and disability. In contrast to § 4112.02(A), which makes it an unlawful discriminatory practice "[f]or any employer , because of the...sex...[or] disability of any person, to discharge without just cause, to refuse to hire, or to otherwise discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter
A defendant therefore need not be an "employer" in order to be subject to liability for discriminatory retaliation under Chapter 4112. Longoria ,
Ernst, Grote, La Joye, and Anspaugh are therefore not improper individual defendants for Parker's retaliation claims per se. But in order to survive a motion to dismiss the retaliation claims, Parker must allege retaliatory adverse actions taken by an individual defendant. And this Parker has failed to do. The retaliatory actions she alleges are that (1) "Strawser moved Parker to the work shop" after she reported Jordan's sexual assault (Doc. 10, Am. Compl. ¶ 103); (2) "Strawser demoted Parker from her line truck driver position" and "Strawser placed Kelly in Parker's line truck driver position" (id. ¶¶ 129-31); (3) "Strawser terminated Parker for alleged insubоrdination," even though complying with her supervisor's request would have meant violating Department of Transportation regulations. (Id. ¶163); and (4) "Parker received unreasonably low performance evaluations and unjustified write ups or corrective actions." (id. ¶216). For the first three of these alleged retaliatory actions, Parker's Amended Complaint attributes these actions only to "Strawser" as a whole, such that the Court cannot plausibly infer which particular employee was allegedly responsible. (Id. ¶¶ 103, 129-31, 163).
As for the negative performance evaluations and unwarranted discipline following her complaints of harassment, Parker attributes these actions to Ernst (id. ¶¶ 72-74, 148-54) and Grote (id. ¶¶ 110-13). However, Parker does not allege that she suffered any harm from these reviews or write ups. Her demotion and ultimate termination occurred ten to 18 months after each of the negative reviews and write-ups, and she does not allege that either was motivated by Ernst's or Grote's negative reviews or write ups. See Baker v. City of Toledo, Ohio , No. 3:05CV7315,
In sum, La Joye and Anspaugh are not alleged to have taken any specific retaliatory actions against Parker, and the alleged retaliatory actions by Ernst and Grote were de minimis and not actionable. Parker has therefore failed to state a viable retaliation claim under § 4112.02(I) against any of the individual defendants.
B. Parker's gender dysphoria is not a disability under the ADA or Chаpter 4112.
Strawser argues that Parker cannot succeed on any of her disability claims under the ADA or Chapter 4112 because Parker's alleged disability, gender dysphoria,
In response, Parker cites an Eastern District of Pennsylvania case in which the court surmised that in enacting the ADA's exclusion for gender identity disorders, Congress was truly concerned with making sure that "non-disabling conditions that concern sexual orientation or identity" were not covered. Blatt v. Cabela's Retail, Inc. , No. 5:14-CV-04822,
But this Court can find no support, textual or otherwise, for the Blatt court's interpretation. The exclusion plainly applies to all "gender identity disorders not resulting from physical impairments," without any regard to whether the gender identity disorder is disabling. Further, whether a condition is "disabling," according to the Blatt court, depends on whether the condition substantially limits one or more major life activities. But limitation of major life activities is a requirement for all conditions qualifying as a "disability" under the ADA.
The clear result is that Congress intended to exclude from the ADA's protection both disabling and non-disabling gender identity disorders that do not result from a physical impairment. The majority of federal cases have concluded as much. See Gulley-Fernandez v. Wisconsin Dep't of Corr. , No. 15-CV-995,
Parker further argues that not all gender identity disorders are excluded by
The language of the statutes make clear thаt Congress and Ohio's General Assembly contemplated that some gender identity disorders result from physical impairments and some do not; those legislative bodies chose to protect from disability discrimination only those that do. It was therefore Parker's obligation to allege in her Amended Complaint that her gender dysphoria is caused by a physical impairment. Having failed to do so, her disability claims under the ADA and Chapter 4112 are foreclosed.
C. Transgender and transitioning status is protected by Title VII and Chapter 4112.
All that remains at this stage are Parker's sex-based claims against Strawser for discrimination, harassment, and retaliation based on her transgender status. Strawser argues that Parker cannot succeed on any of these claims because transgender individuals are not a protected class under Title VII or Chapter 4112. In support of this argument, Strawser cites an Eastern District of Michigan case which held that "transgender or transsexual status is currently not a protected class under Title VII." E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc. ,
The Sixth Circuit confirmed that transgender individuals may assert claims arising out of discrimination based on their failure to conform to sex stereotypes, as foreshadowed by Smith v. City of Salem ,
But the Sixth Circuit also separately extended Title VII protection to claims arising out of discrimination based solely on the fact that an individual is transgender or transitioning, because "it is analytically impossible to fire an employee based on that employee's status as a transgender
As a result, all Parker must plead in order to establish her membership in a protected class is that she is transgender. Her Amended Complaint clearly makes this allegation; accordingly, Parker has sufficiently pleaded that she is a member of a protected class under Title VII and Chapter 4112.
D. Parker has stated a claim for sex discrimination.
Title VII makes it an unlawful employment practice for an employer "to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's...sex." 42 U.S.C. § 2000e-2(a)(1). Similarly, R.C. § 4112.02(A) makes it an unlawful discriminatory practice "[f]or any employer, because of the...sex...of any person, to discharge without just cause, to refuse to hire, or to otherwise discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to еmployment."
In order to establish a prima facie case of discrimination on the basis of her transgender status, Parker must prove (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position in question; and (4) she was treated differently from similarly situated individuals outside of his protected class. Smith ,
Parker does not appear to allege any direct evidence in her Amended Complaint that her demotion or termination was based on her transgender status, and so it may well be that she ultimately makes use of the McDonnell Douglas framework in proving her case. However, the Supreme Court has made it clear that a plaintiff need not plead all the elements of the McDonnell Douglas prima facie case in order to survive a motion to dismiss. Swierkiewicz v. Sorema N. A. ,
Parker has satisfied this standard. She alleges that she is transgender and that Strawser treated her less favorably than its non-transgender employees on the basis of her transgender status. In support of these conclusions, she alleges that Strawser disciplined her more harshly (e.g. , for
E. Parker has stated a claim for sexual harassment.
The Supreme Court recognized in Meritor Savings Bank v. Vinson that a hostile work environment created by harassment on the basis of sex can also constitute sex discrimination under 42 U.S.C. § 2000e-2(a)(1).
1. Hostile work environment
First, Strawser argues that the facts Parker alleges do not amount to harassment that is sufficiently severe or pervasive to create an abusive working environment. There are no hard and fast rules as to how much harassment is enough harаssment to qualify as severe or pervasive. Clark v. United Parcel Serv., Inc. ,
Courts have found this requirement satisfied where a plaintiff alleged she was "the subject of repeated and unrelenting advances from [her supervisor], in the form of direct verbal requests, sexual innuendo, and unwanted touching." Heimberger v. Pritzker , No. 2:12-CV-01064,
In contrast, courts have found this requirement unmet where the offensive conduct "was not a daily or even weekly event." Kelly v. Senior Centers, Inc. ,
Parker's allegations fall somewhere in the middle of this continuum. She alleges that she was "subjected to constant and continuing harassment due to her gender transition"; that Kelly "made repeated derogatory and discriminatory gender, gender identity, and transition comments and jokes"; that after she reported Kelly's harassment to Ernst, "Kelly's sexual harassment of Parker intensified"; that "Strawser's harassment of Parker only intensified in 2013"; that she was sexually assaulted by Jordan, after which her co-workers harassed her for Jordan's termination; that "Ernst stated that he would treat Parker better if she performed sexual favors"; that she suffered "constant harassment and fear of physical abuse"; and that after she returned from suspension, "the harassment...did not cease"; (Doc. 10, Am. Compl. ¶¶ 56, 58, 68, 75, 102, 107, 115, 147). Parker alleges that all of this activity occurred between September 2012 (when she disclosed her transgender and transitioning status to Strawser) and October 2014 (when her employment was terminated).
While Parker's allegations present a closer case than some, the Court concludes that at this early pleading stage, Parker has sufficiently alleged that she suffered a hostile work environment as a result of harassment based on her transgender status.
Employers can be liable for the harassment of their employeеs in two ways: (1) if the harasser is the plaintiff's supervisor, the employer is vicariously liable through principles of agency and respondeat superior; or (2) if the harasser is the plaintiff's co-worker, without supervisory power over the plaintiff, the employer may directly liable if the employer was negligent with respect to the offensive behavior. Vance v. Ball State Univ. ,
Strawser is probably correct that none of Parker's alleged harassers qualify as "supervisors" so as to impose vicarious liability on Strawser. According to Parker's Amended Complaint, Kelly was another truck driver like Parker, and she refers to Jordan as "a co-worker." (Doc. 10, ¶ 99). And althоugh Parker describes Ernst as "manager and/or supervisor" and her "immediate supervisor," (id. ¶ ¶ 3, 41), he does not appear to have possessed the powers required to qualify as a "supervisor" for purposes of sexual harassment claims under Title VII. Vance ,
The ability to direct another employee's tasks, without more, is insufficient to impose vicarious liability on the employer. Vance ,
Having alleged harassment only by co-workers and not supervisors, Parker must allege that Strawser was negligent in addressing the harassment. Employers are negligent when, despite knowledge on the part of the employer of the harassment, the employer has done nothing to stop it, Faragher v. City of Boca Raton ,
Parker's allegations portray just such an ineffectual and indifferent response to the harassment Parker endured. She reported the harassment to Strawser on multiple occasions, but the harassment either persisted
F. Parker has stated a claim for retaliation.
Title VII makes it an unlawful employment practice "for an employer to discriminate against any of his employees ...because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). Similarly, R.C. § 4112.02(I) makes it an unlawful discriminatory practice "[f]or any рerson to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section."
To establish a prima facie case of retaliation under these provisions, a plaintiff must show that: (1) she engaged in an activity protected by Title VII; (2) the defendant knew she engaged in this protected activity; (3) thereafter, the defendant took an employment action adverse to her; and (4) there was a causal connection between the protected activity and the adverse employment action. Smith ,
1. Protected activity
First, Parker alleged she engaged in protected activity when she complained to her superiors, on multiple occasions, that she was being harassed by her co-workers because of her transgender status. Complaints made to superiors are a protected activity under Title VII. Wasek v. Arrow Energy Servs., Inc. ,
2. Causation
As to the fourth element, Parker expressly alleged that that "Strawser's actions [moving her to the workshop, demoting her, issuing unwarranted discipline, and terminating her employment] were retaliatory in nature based on Parker's opposition to the unlawful discriminatory conduct." (Doc. 10, Am. Compl. ¶ 193). Strawser asserts that this type of conclusory allegation is insufficient to satisfy Rule 12(b)(6), and that the only factual allegations Parker makes regarding causation are that her protected complaints were made prior to her demotion and termination. See Mickey v. Zeidler Tool & Die Co.,
While none of the material adverse actions alleged by Parker occurred immediately on the heels of any of her complaints, Parker has alleged other facts that add plausibility to the causation allegation. First, Strawser demoted Parker from her position as line truck driver and replaced her with Kelly, one of Parker's most frequent harassers, about whom Parker had complained to Strawser, and who Parker alleges was unqualified for the position. (Doc. 10, Am. Compl. ¶¶ 131-33). Further, Strawser's stated reason for terminating Parker's employment-insubordination-is inconsistent with Parker's allegations that she could not have complied with her supervisor's request without violating Department of Transportation regulations. (Id. ¶¶ 158-62). Considered against the backdrop of Strawser's repeated failure to take any meaningful action to address the harassment complained of by Parker, these allegations are sufficient to raise a plausible inference that Parker's demotion and termination were motivated in part by her protected complaints. She has therefore sufficiently pleaded a claim for retaliation.
IV. CONCLUSION
For the foregoing reasons, the Motions to Dismiss of Anspaugh, Ernst, Grote, and La Joye (Docs. 19-22) are GRANTED . Strawser's Motion to Dismiss (Doc. 18) is GRANTED IN PART and DENIED IN PART . Parker's claims for disability discrimination under the ADA (Count 7) and Chapter 4112 (Count 8) are DISMISSED . Parker's Motion to Strike (Doc. 36) is DENIED AS MOOT .
The Clerk shall remove Documents 18-22 and 36 from the Court's pending motions list.
IT IS SO ORDERED.
Notes
The Court asks that going forward, the five defendants (who are all represented by the same counsel) consider filing consolidated documents rather than five separate briefs that are largely duplicative of each other, as they have done with these motions.
As a result, Parker's Motion to Strike is also moot, because the portions of Defendants' reply briefs to which she objected dealt solely with whether Parker had sufficiently pleaded her "regarded as disabled" claim under the ADA and Chapter 4112.
Just as with the ADA, federal case law applying Title VII is generally applicable to Chapter 4112's prohibitions on sex discrimination. Hauser ,
Strawser points out that at least some of Kelly's harassment appears to be directed to his perception of her sexual orientation, i.e. , Kelly stated that "Kelly believed that Parker was really a male, who was attracted to other males" and that "Holsinger was a homosexual due to this rooming arrangement [with Parker]." (Doc. 10, Am. Compl. ¶¶ 59, 65). Strawser is correct that the Sixth Circuit's most recent opinion concerning sexual orientation under Title VII held that it did not create a protected class. Vickers v. Fairfield Med. Ctr. ,