Doe et al v. Archdiocese of Cincinnati et al

JANE DOE, et al.,
V.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
Case No. l:23-cv-318
Plaintiffs, 	Judge Matthew W. McFarland
ARCHDIOCESE OF CINCINNATI,
et al.,
Defendants.
ORDER AND OPINION
This matter is before the Court on Defendants' Motions £or Summary Judgment
(Docs. 29, 34). Plaintiff filed Responses in Opposition (Docs. 38, 43), to which Defendants
filed Replies in Support (Docs. 45, 46). This matter is therefore ripe £or the Court's review.
For the following reasons, Defendants' Motions £or Summary Judgment (Docs. 29, 34) are
GRANTED.
BACKGROUND
Defendant Moeller High School ("Moeller") is a private, Catholic high school
operated by Defendant Archdiocese of Cincinnati (" Archdiocese"). (Beiersdorfer Deel.,
Doc. 26-1, ,r 4.) Plaintiff Jane Doe was employed as an administrative assistant at Moeller
from 2000 to 2021. (Doe Dep., Doc. 33-1, Pg . ID 1007, 1093.) Doe worked for Defendant
Michael Asbeck from the time he was hired as Moeller' s athletic director in 2012 until his
termination in 2021 . (Id. at Pg. ID 1138, 1165-66.) Doe brought this action because she
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alleges that Asbeck sexually harassed and assaulted her, and that Moeller and the
Archdiocese 	are 	liable 	for 	Asbeck' s 	harassment 	and 	assault, 	and 	for 	what 	she
characterizes as the constructive termination of her employment. (Compl., Doc. 4, Pg. ID
50-60.)
Moeller and the Archdiocese maintain a policy which prohibits sexual'harassment,
provides for reporting mechanisms, and outlines investigation procedures. (Doe Dep.,
Doc. 33-1, Pg. ID 1145-47; Harassment Policy, Doc. 26-1, Pg. ID 679-85.) This policy
allows for reports to be made to any member of Moeller' s administration, to human
resources, or to the Archdiocese's reporting hotline. (Harassment Policy, Doc. 26-1, Pg.
ID 679-85.) Doe was aware of the policy and had access to it during her term of
employment at Moeller. (Doe Dep., Doc. 33-1, Pg . ID 1145-47.) While Moeller provided
training on its sexual harassment policy, Doe opted not to attend. (Doe Dep., Doc. 33-1,
Pg. ID 1146.) Additionally, Asbeck was aware of and received training on Moeller's
harassment policy during his employment. (Kremer Deel., Doc. 26-4, ,r 7; Collison Deel.,
Doc. 26-3, ,r 11; Asbeck Acknowledgment, Doc. 26-4, Pg. ID 715-17.)
Before As beck's hiring in 2012, Moeller and the Archdiocese reviewed internal
records from his previous employer, another high school in the Archdiocese, and verified
that he had no record of misconduct. (Collison Deel., Doc. 32-3, ,r 9.) Moeller and the
Archdiocese also reached out to another previous employer of As beck's, St. Francis
DeSales High School in Columbus, Ohio, to confirm that he had no record of misconduct
while employed there. (Asbeck Dep., Doc. 25-1, Pg. ID 612; Collison Deel., Doc. 32-3, ,r 9.)
Additionally, Moeller and the Archdiocese confirmed that Asbeck's 2010 background
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check, ordered by the Archdiocese and conducted by the Ohio Bureau of Criminal
Identification and the Federal Bureau of Investigation, showed no criminal record.
(Collison Deel., Doc. 32-3, il 9.) Asbeck participated in Moeller's in-person interview
process, meeting with Moeller' s then-Principal/ CEO Blane Collison and speaking with a
three-member 	hiring 	panel. 	(Id. 	at 	ilil 	7-8.) 	The 	Archdiocese 	conducted 	periodic
background checks on Asbeck during his employment at both Moeller and another
archdiocesan school, confirming in 2010, 2015, and 2020 that he had no criminal record.
(Id. at il 10; Kremer Deel., Doc. 26-4, il 6.)
While Doe was initially uncomfortable with Moeller' s selection of Asbeck as its
new athletic director, she did not feel that Asbeck engaged in any inappropriate conduct
toward her during his first three years on the job. (Doe Dep., Doc. 33-1, Pg. ID 1010, 1032.)
However, Doe felt that Asbeck was lazy, and she disagreed with him on several work-
related matters. (Id. at Pg. ID 1011-13, 1044-45.) Doe was also frustrated when Moeller
reduced her stipends, which were payments awarded to her in exchange for additional
work with the athletic teams. (Id. at Pg. ID 1017-18.) Doe received stipends from Moeller
for work performed in support of various sports camps from 2011 to 2021, and she
received stipends for additional administrative work in 2012, 2013, and 2020 . (Collison
Deel., Doc. 32-3, il 12; Doe Compensation Records, Doc. 26-1, Pg . ID 686-707.) However,
she received no stipend pay for administrative work in 2011 and from 2014 to 2019. (Doe
Compensation Records, Doc. 26-1, Pg. ID 686-707.)
In July 2016, Asbeck was involved in an incident at a Moeller golf outing in which
he kissed a female bartender in both the locker room and parking lot of a local golf course.
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(Asbeck Email, Doc. 25-3, Pg. ID 650.) Moeller and the Archdiocese were unaware of this
incident until January 2019, when Asbeck's conduct was reported by the parent of a
former Moeller student. (Kremer Deel., Doc. 26-4, Pg. ID 713.) After Moeller and the
Archdiocese 	learned 	of 	the 	incident, 	Asbeck 	was 	formally 	reprimanded. 	(Asbeck
Reprimand, Doc. 25-3, Pg. ID 651.)
Doe claims that in August 2016, Asbeck visited her home to view renovations that
she and her husband had recently made. (Doe Dep., Doc. 33-1, Pg. ID 994-95.) During
that encounter, Asbeck drank beer with Doe, commented on her clothing, requested to
see the portion of her home containing her bedroom, and hugged her. (Id. at Pg. ID 1033-
35.) Asbeck's presence made Doe feel anxious and uncomfortable, so she asked him to
leave, and he did. (Id.) Doe did not report this incident to Moeller leadership until after
she obtained a lawyer in January 2021 . (Id. at Pg . ID 1035-36.) Aside from the hug at Doe's
house in August 2016, Asbeck engaged in no alleged physical misconduct toward Doe
before September 2020. (Id . at Pg . ID 1037-38.) However, Doe claims that during that
period Asbeck made comments about her clothing, nail polish choices, and hair, and that
Asbeck would periodically try to hug her until she eventually asked him to stop. (Id. at
Pg. ID 1037, 1041-42.)
Asbeck' s first sexual assault of Doe occurred on September 12, 2020, she alleges.
(Doe Dep., Doc. 33-1, Pg. ID 1044; Doe Journal, Doc. 33-2, Pg. ID 1304.) On that day, after
a football game, Doe returned to the athletic department's office. (Doe Journal, Doc. 33-
2, Pg. ID 1304.) Asbeck returned to the office shortly after Doe. (Id.) Asbeck approached
Doe and confessed his sexual desire for her, requesting that she engage in phone sex with
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him and repeatedly asking her to engage in sexual relations. (Id.) Asbeck also told Doe
that he could not stand up when he looked at her in the office, suggesting his sexual
arousal. (Id.) Doe declined to engage in sexual activities, but Asbeck persisted, eventually
grabbing her chest and kissing her despite her continued refusal. (Id.) Doe did not report
this incident to Moeller or the Archdiocese at that time. (Doe Dep., Doc. 33-1, Pg. ID 1007,
1036, 1052.)
Doe alleges that Asbeck sexually assaulted her again in either late November or
early December of 2020. (Doe Journal, Doc. 33-2, Pg. ID 1304.) In that incident, Doe was
working in Moeller' s concession stand when As beck unbuttoned her shirt, put his mouth
on her breast, and put his hand into her pants. (Id.) Asbeck then put his hand inside Doe,
despite her repeated requests to stop. (Id.) Doe did not report this incident to Moeller or
the Archdiocese at that time. (Doe Dep., Doc. 33-1, Pg. ID 1007, 1036, 1052.)
Doe met with Moeller's then-President Marshall Hydzu on December 15, 2020.
(Doe Dep., Doc. 33-1, Pg. ID 1050; Doe Journal, Doc. 33-2, Pg. ID 1305.) At that meeting,
Doe requested to transfer to another position. (Doe Dep., Doc. 33-1, Pg. ID 1051; Doe
Journal, Doc. 33-2, Pg. ID 1305.) Hyzdu questioned Doe about the reasons behind her
request for a transfer, specifically asking about her working relationship with Asbeck,
but she did not report any misconduct at this meeting. (Doe Dep., Doc. 33-1, Pg. ID 1050-
51; Doe Journal, Doc. 33-2, Pg. ID 1305.) Hyzdu informed Doe that he could not act on
her request without more information. (Doe Dep., Doc. 33-1, Pg. ID 1050-51.)
In January 2021, Doe spoke on two occasions with Moeller' s then-Vice Principal,
Carl Kremer. (Doe Dep., Doc. 33-1, Pg. ID 1052-53; Doe Journal, Doc. 33-2, Pg. ID 1305-
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06; Kremer Deel., Doc. 26-4, ,r 12.) During those meetings, Doe reiterated her desire to
transfer to another department at Moeller. (Doe Journal, Doc. 33-2, Pg. ID 1305-06;
Kremer Deel., Doc. 26-4, ,r 12.) Doe also stated that she was unhappy working with
Asbeck and that she hated him. (Doe Journal, Doc. 33-2, Pg. ID 1305-06; Kremer Deel.,
Doc. 26-4, ,r 12.) Still, Doe did not report any misconduct at this meeting, nor did she
suggest that her request to transfer related to a disability. (Doe Dep., Doc. 33-1, Pg. ID
1006, 1052-53; Doe Journal, Doc. 33-2, Pg. ID 1305-06; Kremer Deel., Doc. 26-4, ,r 12.) After
the second meeting, Kremer informed Doe that a transfer would be unlikely, as Moeller
did not have any open administrative assistant positions to which Doe could transfer.
(Doe Dep., Doc. 33-1, Pg. ID 1003; Kremer Deel., Doc. 26-4, ,r 12.)
Doe retained an attorney on January 13, 2021. (Doe Dep., Doc. 33-1, Pg. ID 1052;
Doe Journal, Doc. 33-2, Pg. ID 1305.) On January 20, 2021, Doe and her attorney met with
Kremer, Hyzdu, and Nathan Beirsdorfer, who was Moeller's Chief Financial Officer at
the time, as well as Moeller's outside counsel. (Doe Dep., Doc. 33-1, Pg. ID 1055; Doe
Journal, Doc. 33-2, Pg. ID 1307; Beiersdorfer Deel., Doc. 26-1, ,r 5; Kremer Deel., Doc. 26-
4, ,r 10.) At this meeting, Doe's attorney presented Moeller's administrative staff with a
letter detailing Doe's allegations of sexual harassment by Asbeck. (Wallace Letter, Doc.
33-2, Pg. ID 1333-34; Doe Dep., Doc. 33-1, Pg . ID 1057-58; Beiersdorfer Deel., Doc. 26-1, ,r
5; Kremer Deel., Doc. 26-4, ,r 10.) This was the first time that Doe had reported sexual
misconduct by Asbeck to Moeller's administration. (Doe Dep., Doc. 33-1, Pg. ID 1001-02,
1007, 1036, 1161-63; Doe Journal, Doc. 33-2, Pg. ID 1309.)
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Immediately following the meeting with Doe and her attorney, Moeller suspended
As beck's employment and revoked his access to the school's facilities and email system.
(Kremer Deel., Doc. 26-4, ~ 11; Doe Dep., Doc. 33-1, Pg. ID 1059-o0; Doe Journal, Doc. 33-
2, Pg. ID 1308.) Moeller leadership instructed Asbeck to refrain from contacting any
person affiliated with Moeller. (Doe Journal, Doc. 33-2, Pg. ID 1309.) Two weeks later, on
February 4, 	2021, 	Moeller terminated As beck's employment following 	an internal
investigation. (Beiersdorfer Deel., Doc. 26-1, ~ 5; Kremer Deel., Doc. 26-4, ~ 11; Doe Dep.,
Doc. 33-1, Pg. ID 1060.) Moeller also referred its findings to the local prosecutor's office.
(Doe Dep., Doc. 33-1, Pg. ID 1154.)
After Doe reported Asbeck' s alleged misconduct, Moeller immediately took
several steps to provide Doe with support. In response to Doe's safety concerns, Moeller
changed the locks to her office, and several members of Moeller' s leadership team
checked in with her to verify her wellbeing and provide assurance that her safety was a
priority. (Doe Journal, Doc. 33-2, Pg. ID 1307-12; Doe Dep., Doc. 33-1, Pg. ID 1107.)
Moeller also offered to provide Doe with assistance in seeking therapy, and she began
seeing a therapist on February 10, 2021, at Moeller's expense. (Doe Dep., Doc. 33-1, Pg.
ID 1062-64.) Doe continued treatment with her therapist for months and was eventually
diagnosed with post-traumatic stress disorder ("PTSD"). (Doe Treatment Records, Doc.
33-2, 	Pg. 	ID 	1335-58; 	Fienning 	Letter, 	Doc. 	33-2, 	Pg. 	ID 	1364-65.) 	Doe 	reported
experiencing symptoms such as weight loss, inability to sleep, vomiting, inability to
engage in social settings without worsened symptoms, and feelings of stress and anxiety
when reminded of Asbeck' s harassment. (Doe Treatment Records, Doc. 33-2, Pg. ID 1335-
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58; Fienning Letter, Doc. 33-2, Pg. ID 1364-65.) Moeller was unaware of Doe's diagnosis
until September 2021. (Doe Dep., Doc. 33-1, Pg. ID 1103.)
After Moeller terminated Asbeck, Doe assumed many of the duties of the athletic
director position due to her familiarity with the athletic department's operations. (Doe
Dep., Doc. 33-1, Pg. ID 1077.) However, Hyzdu served as acting athletic director at that
time. (Id.) In June 2021, Moeller awarded Doe a $3,000 bonus in recognition of her
increased workload. (Id. at Pg. ID 1077-78.) And, in July 2021, Moeller hired Justin Bayer
as its new athletic director, along with two additional athletic staff members. (Doe Dep.,
Doc. 33-1, Pg. ID 1079, 1111.)
On August 9, 2021, Jane Doe requested a two-week vacation, and Moeller
leadership approved the request-Doe ended up using only one week of that vacation.
(Doe Dep., Doc. 33-1, Pg. ID 1123-24; Doe Journal, Doc. 33-2, Pg. ID 1331.) When Doe
returned to the office on August 16, 2021, she found her desk space occupied by another
employee, and department files had been removed from her access. (Doe Dep., Doc. 33-
1, Pg. ID 1110, 1123.) Doe then met with Beiersdorfer and Bayer, and Beiersdorfer
allegedly informed Doe that an internal complaint had been made against her. (Id. at Pg.
ID 1112-13.) Doe did not receive a write-up during this meeting, and no such write-up
appears in her personnel file. (Doe Dep., Doc. 33-1, Pg. ID 1113-14, 1117-18; Beiersdorfer
Deel., Doc. 26-1, ,r 7.)
On September 8, 2021, Doe requested paid medical leave under the Family and
Medical Leave Act ("FMLA"), and Moeller granted her request for leave through
November 30, 2021. (Doe Dep., Doc. 33-1, Pg. ID 1074-75; Wallace Email, Doc. 33-2, Pg.
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ID 1359.) Attached to Doe's initial FMLA leave request was a letter from her therapist
that detailed Doe's symptoms, explained her PTSD diagnosis, and recommended that she
not return to work. (See Fienning Letter, Doc. 33-2, Pg. ID 1364-65.) Doe subsequently
requested an extension of her paid FMLA leave through December 31, 2021, which
Moeller also granted. (Beiersdorfer Deel., Doc. 26-1, ,r 8.) And, on November 30, 2021,
Doe informed Moeller that she planned to retire upon the expiration of her FMLA leave
on December 31, 2021. (Doe Dep., Doc. 33-1, Pg. ID 1093; Doe Retirement Letter, Doc. 33-
2, Pg. ID 1366.)
On April 21, 2023, Doe and her husband filed this action in the Court of Common
Pleas of Hamilton County, Ohio, bringing various claims against Moeller, Asbeck, and
the Archdiocese. (Compl., Doc. 4.) These claims include a claim for intentional infliction
of emotional distress against Asbeck, as well as claims for sex discrimination, hostile
work 	environment, 	failure 	to 	accommodate, 	disability 	discrimination, 	retaliation,
negligent hiring, retention and supervision, respondeat superior, and loss of consortium
against Moeller and the Archdiocese. (Id.) Moeller and the Archdiocese removed the
action to this Court, with the consent of Asbeck. (See Notice of Removal, Doc. 1, Pg. ID 1.)
Moeller and the Archdiocese filed their Answer (Doc. 5) on May 30, 2023. And, on
October 13, 2023, Asbeck moved for partial judgment on the pleadings. (Motion for
Judgment on the Pleadings, Doc. 11.) The Court granted Asbeck's motion in part and
denied it in part, allowing the portion of Plaintiffs' intentional infliction of emotional
distress claim arising from Asbeck's alleged sexual harassment of Doe to proceed. (See
Order and Opinion, Doc. 15, Pg. ID 144-45.)
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On March 28, 2025, Asbeck filed a Motion for Summary Judgment (Doc. 28), which
he later modified through his Amended Motion for Summary Judgment (Doc. 34).
Plaintiffs filed a Response in Opposition (Doc. 38) to Asbeck's Amended Motion for
Summary Judgment, to which Asbeck filed a Reply in Support (Doc. 45). Also on March
28, 2025, Moeller and the Archdiocese filed a Motion for Summary Judgment (Doc. 29).
Plaintiffs filed a Response in Opposition (Doc. 43) to Moeller and the Archdiocese's
Motion for Summary Judgment, to which Moeller and the Archdiocese filed a Reply in
Support (Doc. 46.)
LAW
A court grants summary judgment when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The moving party has the burden to establish that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy, Inc. v. Espy, 39
F.3d 1339, 1347 (6th Cir. 1994). If the moving party meets that burden, then it becomes
the nonmoving party's responsibility to point to specific facts showing a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A court is under no
obligation to search the record for genuine issues of material fact. Betkerur v. Aultman
Hosp. Ass'n, 78 F.3d 1079, 1087 (6th Cir. 1996).
Moreover, a "mere scintilla" of evidence in support of the nonmoving party's
position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730, 734
(6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put
forth probative evidence on which a jury could reasonably reach a verdict in that party's
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favor. Anderson, 477 U.S. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the nonmoving party
fails to make the necessary showing for an element on which it has the burden of proof,
then the moving party is entitled to summary judgment. Celotex, 477 U.S . at 323.
ANALYSIS
As a preliminary matter, the Court weighs whether it is appropriate to consider
Doe's Declaration (Doc. 36), which Plaintiffs filed just before responding to Defendants'
Motions for Summary Judgment. "A party may not create a factual issue by filing an
affidavit, after a motion for summary judgment has been made, which contradicts her
earlier deposition testimony." Reid v. Sears, Roebuck & Co., 790 F.2d 453,460 (6th Cir. 1986).
"[I]f an affidavit directly contradicts the affiant's prior deposition testimony, it should be
stricken unless the party opposing summary judgment provides a persuasive justification
for the contradiction." McClain v. Mason Cnty., 618 F. App'x 262, 266 (6th Cir. 2015)
(cleaned up).
Plaintiffs argue that "Doe tried to report [Asbeck's] harassment multiple times to
Moeller' s administration, but these reports were ignored." (Response, Doc. 43, Pg. ID
1480.) This account of the facts is based on statements made for the first time in Doe's
Declaration. (See Doe Deel., Doc. 36, Pg. ID 1402-04.) These assertions directly contradict
statements Doe made in her deposition, in which she explicitly notes several times that
her January 20, 2021, meeting with Moeller administrators was the first time that Doe
reported sexual misconduct by As beck to Moeller' s administration. (Doe Dep., Doc. 33-
1, Pg . ID 1001-02, 1007, 1036, 1161-63.) Thus, because Doe's Declaration directly
contradicts 	her 	deposition 	testimony, 	and 	because 	Plaintiffs 	fail 	to 	justify 	this
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discrepancy, the Court will not consider Doe's Deposition to the extent that it contains
statements asserting that Doe reported sexual misconduct by As beck prior to January 20,
2021.
Having resolved this preliminary matter, the Court will now analyze Defendants'
Motions for Summary Judgment (Docs. 29, 34).
I. 	Plaintiffs' Claims Against Moeller and the Archdiocese
The Court will first address Plaintiffs' claims against Moeller and the Archdiocese.
Where, as here, workplace-discrimination claims lack direct evidence of discrimination,
courts apply the three-part framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). First, the plaintiff bears the burden of establishing a prima facie
case of discrimination. Thompson v. Fresh Prods., LLC, 985 F.3d 509, 522 (6th Cir. 2021).
Assuming the plaintiff accomplishes this, "the burden shifts to the employer to provide
a legitimate, non-discriminatory reason for the adverse action." Id. If a legitimate, non-
discriminatory reason is provided, "the burden shifts back to the plaintiff to establish that
the proffered reason was merely pretext for unlawful discrimination." Id.
In federal court, federal and Ohio discrimination claims are analyzed under the
same standards. Knox v. Neaton Auto Prods. Mfg., 375 F.3d 451, 457 (6th Cir. 2004).
Accordingly, to the extent Doe brings concurrent claims under both Title VII and Ohio
Revised Code § 4112, the Court will consider them together. The Court first examines
Doe's employment claims, beginning with her sex discrimination allegation. These claims
are subject to the McDonnell Douglas burden-shifting framework. See Howard v. Cherokee
Health Sys., No. 24-5981, 2025 U.S. App. LEXIS 22825, at *9 (6th Cir. Sep. 2, 2025) (applying
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McDonnell Douglas framework to sex discrimination claim); Johnson v. Defoy, No. 23-1813,
2024 U.S. App. LEXIS 13961, at *19 (6th Cir. June 7, 2024) (applying McDonnell Douglas
framework to hostile-work-environment claim); Blank v. Nationwide Corp., No. 20-3969,
2021 U.S. App. LEXIS 23463, at *22 (6th Cir. Aug. 6, 2021) (applying McDonnell Douglas
framework to disability discrimination claim under Ohio law); Palmer v. Dep't of United
States A.F., No. 24-3755, 2025 U.S. App. LEXIS 26974, at *9-10 (6th Cir. Oct. 15, 2025)
(applying McDonnell Douglas framework to retaliation claim). Next, the Court addresses
Doe's negligent hiring, retention, and supervision claim, as well as her claim for
respondeat superior liability against Moeller and the Archdiocese. Finally, the Court
turns to the claim by Doe's husband, John Doe, for loss of consortium.
A. 	Jane Doe's Sex Discrimination Claim
Moeller and the Archdiocese contend that Doe's sex discrimination claim fails as
a matter of law because she fails to establish a prima facie case of sex discrimination.
(Motion for Summary Judgment, Doc. 29, Pg. ID 775-82.) Doe does not respond to this
argument and instead asserts that she makes no such claim. (Response, Doc. 43, Pg. ID
1483, n.1.) "When a litigant fails to address a claim in response to a motion for summary
judgment, that claim is deemed abandoned or forfeited." Bennett v. HurletJ Med. Ctr., 86
F.4th 314,325 (6th Cir. 2023). Thus, to the extent Doe makes a claim for sex discrimination
in her Complaint (Doc. 4), that claim is deemed abandoned.
B. Jane Doe's Hostile-Work-Environment Claim
Moeller and 	the 	Archdiocese next assert that Doe's claim for 	hostile work
environment fails as a matter of law. To establish a prima fade case of hostile work
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environment, a plaintiff must show: "(1) she was a member of a protected class; (2) she
was subjected to unwelcomed harassment; (3) the harassment was based on sex; (4) the
harassment created a hostile work environment; and (5) employer liability." Wyatt v.
Nissan N. Am., Inc., 999 F.3d 400, 411 (6th Cir. 2021) (cleaned up). If the harassing
individual is the plaintiff's supervisor, the employer is strictly liable. Vance v. Ball State
Univ., 570 U.S. 421, 424 (2013). However, under the Faragher-Ellerth defense, "if no
tangible employment action is taken, the employer may escape liability by establishing,
as an affirmative defense, that (1) the employer exercised reasonable care to prevent and
correct any harassing behavior and (2) that the plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities that the employer provided." Id.
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth,
524 U.S. 742, 765 (1998)); see also Chapp v. 202 Lake St. Partners, LLC, No. l:23-CV-416, 2025
U.S. Dist. LEXIS 111639, at *26-27 (W.D. Mich. June 12, 2025) (describing the Faragher-
Ellerth defense and applying it in the context of a hostile work environment claim).
Moeller and the Archdiocese contend that the Faragher-Ellerth defense applies,
allowing them to escape liability. (Motion for Summary Judgment, Doc. 29, Pg. ID 783-
84.) Doe argues that Moeller and the Archdiocese concede that a prima facie case of
hostile work environment is established. (Response, Doc. 43. Pg. ID 1483.) In response,
Moeller and the Archdiocese contend that they make no such concession, as they dispute
that the employer liability element is established. (Reply, Doc. 46, Pg. ID 1524.) The
Faragher-Ellerth defense, which Moeller and the Archdiocese raise, would absolve them
of liability, which is the fifth element of a prima facie case of hostile work environment.
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(See Motion for Summary Judgment, Doc. 29, Pg. ID 783-84.) Thus, Moeller and the
Archdiocese do not concede that a prima fade case of hostile work environment is
established. Additionally, in arguing that the Faragher-Ellerth defense applies, Moeller
and the Archdiocese argue that Asbeck' s harassment of Doe never led to a tangible
employment action, as Doe never faced any employment consequences resulting from
Asbeck's conduct. (Id. at Pg. ID 783 .) Doe does not contest this point as it relates to the
Faragher-Ellerth defense. (See Response, Doc. 43, Pg. ID 1483-86.) And, in framing an
alleged constructive discharge for present purposes, "the Supreme Court in Suders held
that a constructive discharge-where the supervisor's behavior involved no official
actions-does not amount to a tangible employment action in the context of Faragher-
Ellerth." Chapp, 2025 U.S. Dist. LEXIS 111639, at *26 (citing Penn. State Police v. Suders, 542
U.S. 129, 140, 148 (2004)). As a result, the Court will analyze whether Moeller and the
Archdiocese are entitled to the Faragher-Ellerth defense.
The first inquiry of the Faragher-Ellerth analysis is whether the employer exercised
reasonable care to prevent and correct any harassing behavior. Vance, 570 U.S. at 424. This
requires a look at whether the employer had a reasonable sexual harassment policy, and
whether it was effective in practice. Wyatt, 999 F.3d at 414. "While there is no exact
formula for what constitutes a reasonable sexual harassment policy, an effective policy
should at least: (1) require supervisors to report incidents of sexual harassment; (2) permit
both informal and formal complaints of harassment to be made; (3) provide a mechanism
for bypassing a harassing supervisor when making a complaint; and (4) provide for
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training regarding the policy." Clark v. UPS, 400 F.3d 341, 349-50 (6th Cir. 2005) (cleaned
up).
Moeller and the Archdiocese assert that they exercised reasonable care to prevent
and correct any harassing behavior, as they maintained a policy prohibiting sexual
harassment 	and 	establishing 	reporting 	mechanisms 	and 	investigation 	procedures.
(Motion for Summary Judgment, Doc. 29, Pg. ID 783-84.) In response, Doe argues that
the policy was inadequate for purposes of the Faragher-Ellerth defense because it did not
allow for informal complaints, and it did not provide for training. (Response, Doc. 43, Pg.
ID 1484-85.) Doe also argues that the policy was ineffective in preventing and correcting
sexual harassment. (Id.)
Moeller and the Archdiocese's sexual harassment policy, which Doe knew about
and could access, did make several informal reporting channels available, but Doe chose
not to use them. (Doe Dep., Doc. 33-1, Pg. ID 1145-47; Harassment Policy, Doc. 26-1, Pg.
ID 679-85.) Moeller provided training on its sexual harassment policy, but Doe opted not
to attend. (Doe Dep., Doc. 33-1, Pg. ID 1146.) Although Doe did not attend training on the
policy, it was sufficient that Moeller gave the policy to Doe and provided training
opportunities. See Primm v. Auction Broad. Co., LLC, No. 3:10-CV-629, 2012 U.S. Dist.
LEXIS 974, at *21 (M.D. Tenn. Jan. 4, 2012) (noting that "[n]umerous courts have held that
employers 	acted 	reasonably 	as a matter 	of law when they adopted 	valid sexual
harassment policies, distributed those policies to employees via employee handbooks,
and 	either 	provided 	no 	sexual harassment training or provided training only 	to
managers"); cf Thornton v. Fed. Express Corp., 530 F.3d 451, 456 (6th Cir. 2008) (stating that
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a sexual harassment policy should provide for training, but observing that there was no
dispute regarding the reasonableness of the employer's prevention efforts where the
employer distributed its policy via an employee handbook and the plaintiff received
more than one copy of the handbook during her employment). Thus, Moeller and the
Archdiocese clear the reasonableness hurdles outlined in Clark, 400 F.3d at 349-50.
When Doe reported Asbeck' s sexual harassment for the first time on January 20,
2021, 	the 	school 	took 	prompt 	action 	to 	investigate 	and 	remediate 	the 	situation,
suspending Asbeck and launching the investigation that led to the termination of his
employment. (Beiersdorfer Deel., Doc. 26-1, ,-r 5; Kremer Deel., Doc. 26-4, ,-r 11; Doe Dep.,
Doc. 33-1, Pg. ID 1001-02, 1007, 1036, 1059-60, 1161-63; Doe Journal, Doc. 33-2, Pg. ID
1308.) Doe offers an anonymous report (Doc. 43-1, Pg. ID 1492-95) alleging that Moeller
mishandled past instances of sexual harassment. However, the report is improper for the
Court's consideration because it was submitted as an attachment to the declaration of
Doe's attorney, who has no personal knowledge of the allegations in the anonymous
report and Moeller's actions in response. See Brainard v. Am. Skandia Life Assurance Corp.,
432 F.3d 655, 667 (6th Cir. 2005) (noting that the district court's consideration of an
attorney affidavit was improper because it was not based on personal knowledge). Doe
also points out that it took over three years for Moeller and the Archdiocese to investigate
a 2016 incident involving inappropriate conduct by Asbeck at a Moeller golf outing.
(Response, Doc. 43, Pg. ID 1485.) However, because this incident did not involve sexual
harassment, this contention has no relevance to the Court's analysis here, especially
because there is no evidence to suggest that this encounter was nonconsensual, and
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because Moeller did not learn about it until years later. The Court therefore finds that
Moeller and the Archdiocese exercised reasonable care to prevent and correct any
harassing behavior, fulfilling the first element of the Faragher-Ellerth defense.
The 	second 	inquiry 	of 	the 	Faragher-Ellerth 	analysis 	is 	whether 	the 	plaintiff
unreasonably failed to take advantage of the preventive or corrective opportunities that
the employer provided. Vance, 570 U.S. at 424. This requires a look at how and when the
plaintiff used the employer's existing corrective and protective measures. Wyatt, 999 F.3d
at 415-16. The Sixth Circuit has found that an employee unreasonably fails to take
advantage of corrective opportunities when she waits multiple months or years to report
harassment. See Thornton, 530 F.3d at 457-58 (unreasonable reporting delay of two
months); EEOC v. AutoZone, Inc., 692 F. App'x 280, 286 (6th Cir. 2017) (unreasonable
reporting delay between two and two-and-a-half months); Deters v. Rock-Tenn Co., 245 F.
App'x 516, 527 (6th Cir. 2007) (unreasonable reporting delay of three years)." All of the
facts 	and 	circumstances 	must 	be 	evaluated 	to 	determine 	whether 	the 	plaintiff[]
unreasonably failed to take advantage of [the employer's] harassment policy." Shields v.
Fed. Express Customer Info. Servs., 499 F. App'x 473,482 (6th Cir. 2012) (cleaned up).
While the harassing conduct by Asbeck began as early as August 2016, with the
first sexual assault taking place in September 2020 and the last taking place in November
or December of 2020, Doe did not report any of this conduct to Moeller administrators
until January 20, 2021. (Doe Dep., Doc. 33-1, Pg. ID 994-1042, 1161-63; Doe Journal, Doc.
33-2, Pg. 	ID 1309.) Thus, Doe waited over four years from the start of Asbeck's
harassment, over four months from the first sexual assault incident, and around two
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months from the final sexual assault incident to report any misconduct by Asbeck. Doe
claims that she was unaware of her reporting options, but this supposed lack of
knowledge does not excuse her failure to take advantage of corrective opportunities, as
she knew about and had access to the sexual harassment policy contained in Moeller's
employee handbook. (Response, Doc. 43, Pg. ID 1485-86; Doe Dep., Doc. 33-1, Pg. ID
1145-47.) 	Additionally, 	Doe 	notes 	that she 	knew 	that she 	could 	report Asbeck's
harassment to Kremer and Hyzdu, so her lack of knowledge about other reporting
options fails to convince. (Response, Doc. 43, Pg. ID 1485-86; Doe Deel., Doc. 36, ,r 17.)
This point is bolstered by the fact that Moeller took swift corrective action after Doe
eventually reported Asbeck's harassment to administrators, 	including Kremer and
Hyzdu, on January 20, 2021. (Beiersdorfer Deel., Doc. 26-1, ,r 5; Kremer Deel., Doc. 26-4,
il 11; Doe Dep., Doc. 33-1, Pg. ID 1001-02, 1007, 1036, 1059-60, 1161-63; Doe Journal, Doc.
33-2, Pg. ID 1308.) Moeller's swift corrective action also demonstrates that reporting
Asbeck's misconduct would not have been futile. As a result, the Court finds that Doe
unreasonably failed to take advantage of the corrective opportunities that Moeller and
the Archdiocese provided. Thus, Moeller and the Archdiocese have established the
elements of the Faragher-Ellerth defense and Doe's claim for hostile work environment
therefore fails.
C. Jane Doe's Failure to Accommodate Claim
Next, 	Moeller 	and 	the 	Archdiocese 	argue 	that 	Doe's 	claim 	for 	failure 	to
accommodate fails as a matter of law. (Motion for Summary Judgment, Doc. 29, Pg. ID
785-86.) Doe, however, asserts that her Complaint (Doc. 4) does not allege a failure-to-
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accommodate claim. (Response, Doc. 43, Pg. ID 1486.) Thus, to the extent Doe makes a
claim for failure to accommodate in her Complaint (Doc. 4), that claim is deemed
abandoned. See Bennett, 86 F.4th at 325.
D. Jane Doe's Disability Discrimination Claim
Moeller 	and 	the 	Archdiocese 	next 	argue 	that 	Doe's 	claim 	for 	disability
discrimination fails as a matter of law. (Motion for Summary Judgment, Doc. 29, Pg. ID
786-87.) Doe brings her disability discrimination claim purely under Ohio law-not the
federal Americans with Disabilities Act (" ADA"). (See Compl., Doc. 4, Pg. ID 56-57;
Response, Doc. 43, Pg. ID 1486-87.) "In order to demonstrate a prima facie case of
disability discrimination under Ohio law, a plaintiff must show (1) that he or she was
disabled; (2) that the employer took an adverse employment action against the employee,
at least in part, because the employee was disabled; and (3) that the employee could safely
and substantially perform the essential functions of the job in question despite his or her
disability." Blank, 2021 U.S. App. LEXIS 23463, at *22 (cleaned up). Because "Ohio's
disability-discrimination statute and the ADA employ the same analysis," the Court will
analyze Doe's claim through the lens of federal case law analyzing both the ADA and
Ohio's disability discrimination statute. Kleiber v. Honda of Am. Mfg., 485 F.3d 862,872 (6th
Cir. 2007); see also City of C.Olumbus Civ. Serv. Comm'n v. McGlone, 82 Ohio St. 3d 569, 573
(Ohio 1998) (noting that the "federal Americans with Disabilities Act (ADA) is similar to
the Ohio [disability] discrimination law," so courts may "look to ... cases interpreting
the federal Act for guidance in [their] interpretation of Ohio law").
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Moeller and the Archdiocese argue that Doe fails to show that she suffered an
adverse employment action. (Motion for Summary Judgment, Doc. 29, Pg. ID 786; Reply,
Doc. 46, Pg. ID 1532-33.) Moeller and the Archdiocese also argue that they lacked
knowledge about Doe's disability, so even if there were an adverse employment action,
it could not have been because of her disability. (Id.) In asserting that Doe fails to show
that she suffered an adverse employment action that was based on her disability, Moeller
and the Archdiocese advance several arguments. First, Moeller and the Archdiocese note
that any claim by Doe that she was demoted is without merit, as she served in the same
position from 2003 until her voluntary retirement-no demotion ever occurred. (Motion
for Summary Judgment, Doc. 29, Pg. ID 777, 786.) Next, Moeller and the Archdiocese
argue that the increased workload that Doe experienced in the Spring of 2021 was not an
adverse employment action. (Id.) Moeller and the Archdiocese also assert that the write-
up that Doe claims to have received never existed, and that it would not be an adverse
employment action even if it did exist. (Id. at Pg. ID 777-78, 786.) Finally, Moeller and the
Archdiocese argue that Doe was not constructively discharged. (Id. at Pg. ID 778-81, 786.)
Doe does not respond to Moeller and the Archdiocese's arguments as to demotion and
increased workload, and she instead focuses her argument on advancing a theory of
constructive discharge. (Response, Doc. 43, Pg. ID 1486-87.) In support, Doe points to the
supposed write-up and Moeller's hiring of other employees. (Id.)
With these arguments in mind, the Court outlines the governing standards. "An
adverse employment action is a materially adverse change in the terms or conditions of
employment because of the employer's conduct." Talley v . Family Dollar Stores of Ohio,
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Inc., 542 F.3d 1099, 1107 (6th Cir. 	2008) 	(cleaned up). 	And, "[t]he existence of a
constructive discharge depends upon the facts of each case and requires an inquiry into
the intent of the employer and the reasonably foreseeable impact of the employer's
conduct upon the employee." Smith v. Henderson, 376 F.3d 529,533 (6th Cir. 2004) (cleaned
up)." A constructive discharge requires a determination that working conditions would
have been so difficult or unpleasant that a reasonable person in the employee's shoes
would have felt compelled to resign." Id. at 533-34 (cleaned up). The following factors
are relevant in considering whether work conditions were so intolerable that a reasonable
person would have felt compelled to resign: "(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." Laster v. City of Kalamazoo, 746 F.3d 714, 728 (6th Cir. 2014)
(citing Logan v. Denny's, 259 F.3d 558,569 (6th Cir. 2001)).
The record here lacks evidence of any of the factors outlined in Laster. Doe was
never demoted during her employment at Moeller, and her salary was never lowered.
Her job responsibilities were never reduced, and she was never reassigned to menial or
degrading 	work-indeed, 	Doe's 	job 	responsibilities 	increased 	after 	Asbeck's
employment was terminated, and she received a $3,000 bonus as a result. (Doe Dep., Doc.
33-1, Pg. ID 1077-78.) The briefing points to no evidence that Doe was reassigned to work
under a younger supervisor, and there is no evidence that Moeller leadership harassed
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Doe or offered her either early retirement or continued employment on less favorable
terms.
In arguing that she was constructively discharged, Doe asserts that Moeller
engaged in a course of conduct to oust her and force her retirement, and that Moeller did
not immediately terminate her employment because her work became essential during
the interim period between As beck's discharge and the hiring of his replacement.
(Response, Doc. 43, Pg. ID 1486-87.) Doe contends that Moeller's hiring of two new
assistants in the athletic department, as well as the supposed write-up, made it clear that
her discharge was inevitable. (Id.) This theory encounters two problems. First, Doe does
not provide, and the Court is unaware of, any precedent that shows that hiring additional
staff or placing a write-up in an employee's personnel file would lead to an intolerable
work environment sufficient to demonstrate a constructive discharge. Second, the record
shows that no write-up was ever placed in Doe's personnel file, and it does not show that
the new assistants in the athletic department were hired to replace Doe. To the extent
there exists a dispute of fact as to whether Doe was told that a write-up would be placed
in her file, such a dispute is relevant but not dispositive here because, even if she was told
this, it does not establish a constructive discharge. Therefore, Doe does not demonstrate
a constructive discharge and thus does not show that she faced an adverse employment
action that was taken by Moeller and the Archdiocese because of her disability.
As Moeller and the Archdiocese point out, even if Doe could establish that an
adverse employment action was taken, she cannot show that such an action was taken
due to her disability. (Motion for Summary Judgment, Doc. 29, Pg. ID 787-88.) And, Doe
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does not address this argument in her Response, so she concedes this point and the Court
need not analyze it further. See Campbell v. Hines, No. 12-4329, 2013 U.S. App. LEXIS
26071, at *13-14 (6th Cir. Aug. 8, 2013) ("In light of [the plaintiff's] failure to address the
defendants' arguments in his response to the summary judgment motion, the district
court properly declined to consider the merits of the claims."). In any event, the record
shows that Moeller' s administration was unaware of Doe's PTSD diagnosis during the
relevant period, so any adverse employment action could not have been taken on the
basis of her disability. (Doe Dep., Doc. 33-1, Pg. ID 1103.) Therefore, Doe fails to establish
a prima facie case of disability discrimination under Ohio law, and her claim for disability
discrimination fails as a result.
E. 	Jane Doe's Retaliation Claim
Moeller and the Archdiocese next argue that Doe's retaliation claim fails as a
matter of law. (Motion for Summary Judgment, Doc. 29, Pg. ID 787-89.) "To establish a
prima facie case of retaliation a plaintiff must establish that: (1) she engaged in a protected
activity; (2) her exercise of such protected activity was known by the defendant; (3)
thereafter, the defendant took an action that was materially adverse to the plaintiff; and
(4) a causal connection existed between the protected activity and the materially adverse
action." Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775 (6th Cir. 2018) (cleaned up). As
it relates to the third element of this test, "[a] plaintiff's burden of establishing a materially
adverse employment action is less onerous in the retaliation context than in the anti-
discrimination context." Laster, 746 F.3d at 718. Still, a plaintiff must show that the action
taken by the employer was materially adverse such that it "well might have dissuaded a
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reasonable worker from making or supporting a charge of discrimination." Burlington N.
& Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (cleaned up).
Doe contends that her constructive discharge theory establishes the materially
adverse action element. (Response, Doc. 43. Pg. ID 1487-88.) But, as outlined above, Doe
has failed to show that she suffered an adverse employment action or was constructively
discharged. Plaintiff provides no other argument in support of her contention that
Moeller and the Archdiocese subjected her to a materially adverse employment action.
(See id.) And, the Court finds that the events giving rise to Doe's constructive discharge
theory would not have dissuaded a reasonable worker from engaging in protected
activity. Indeed, while the record shows that no write-up was ever placed in Doe's
personnel file, a write-up alone would be insufficient to establish a materially adverse
action. See Chavez-Deremer v. Tosh Pork, LLC, No. 1:24-CV-1038, 2025 U.S. Dist. LEXIS
193263, at *27 (W.D. Tenn. Sep. 30, 2025) (finding that "a write-up alone, without some
other adverse effect, is not sufficient to constitute an adverse employment action" in the
retaliation context). Further, as discussed above, the record does not show that the new
assistants in the athletic department were hired to replace Doe. Thus, Doe cannot
establish the materially adverse action element in the retaliation context.
Moeller and the Archdiocese argue that even if Doe could show that she faced an
adverse employment action or was constructively discharged, she cannot demonstrate
causation between her harassment complaint and any adverse employment action.
(Motion for Summary Judgment, Doc. 29, Pg. ID 787-88.) Doe does not address this
argument in her Response, so the Court need not address the merits of this argument. See
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Campbell, 2013 U.S. App. LEXIS 26071, at *13-14. Regardless, the Court finds Moeller and
the Archdiocese's argument here to be persuasive. The actions that Doe contends were
the start of Moeller and the Archdiocese's push to constructive! y discharge her took place
five months after Doe's harassment complaint, so Doe must provide additional evidence
showing retaliatory intent. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.
2008) 	(noting that when extensive 	time elapses between an employer learning of
protected activity and an adverse action, the employee must show additional evidence of
retaliatory intent to show causation); Barrow v. City of Cleveland, 773 F. App'x 254,264 (6th
Cir. 2019) (" a gap of approximately four-to-five months is insufficient, without additional
evidence, to imply causation"). Doe fails to provide such evidence of retaliatory intent.
As a result, Doe fails to demonstrate both causation and that she faced an adverse
employment action, so she cannot establish a prima fade case of retaliation. Doe's claim
for retaliation fails as a result.
F. 	Jane Doe's Negligent Hiring, Retention, and Supervision Claim
Moeller and the Archdiocese next argue that Doe's negligent hiring, retention, and
supervision claim fails as a matter of law. (Motion for Summary Judgment, Doc. 29, Pg.
ID 789-90.) "Negligent hiring, retention, and supervision claims under Ohio law require
proof of five elements: (1) the existence of an employment relationship; (2) the employee's
incompetence; 	(3) 	the 	employer's 	actual 	or 	constructive 	knowledge 	of 	such
incompetence; (4) the employee's act or omission causing plaintiff's injuries; and (5) the
employer's negligence in hiring or retaining the employee was the proximate cause of the
plaintiff's injuries." Watson v. City of Cleveland, 202 F. App'x 844,857 (6th Cir. 2006) (citing
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Linder v. Am. Nat'[ Ins. Co., 798 N.E.2d 1190, 1197 (Ohio Ct. App. 2003)). Moeller and the
Archdiocese contend that Doe fails to establish the third and fifth elements of this test.
(Motion for Summary Judgment, Doc. 29, Pg. ID 789.)
"In claims for negligent hiring, retention, and supervision, foreseeability is the test
of employer liability." Cole v. Am. Cmty. Servs., No. 2:04-CV-738, 2006 U.S. Dist. LEXIS
75431, at *17 (S.D. Ohio Oct. 17, 2006) (cleaned up). "[T]he plaintiff must focus the inquiry
on the employer and not on what the employee did. If the plaintiff shows facts indicating
the employee had a past history of criminal or tortious conduct about which the employer
knew or should have known, summary judgment is improper and a question of fact is
raised .... The relevant inquiry is whether facts existed that the employer should have
known about." Dawson v. Airtouch Cellular, 42 F. Supp. 2d 767, 772 (S.D. Ohio 1999)
(cleaned up) (quoting Stephens v. A-Able Rents Co., 654 N.E.2d 1315, 1319 (Ohio Ct. App.
1995)).
Here, prior to hiring Asbeck, Moeller and the Archdiocese confirmed that he had
no criminal background and no record of misconduct in his past employment. (Collison
Deel., Doc. 32-3, ,r 9; Asbeck Dep., Doc. 25-1, Pg. ID 612.) The Archdiocese conducted
periodic background checks on Asbeck during his employment at both Moeller and
another archdiocesan school, confirming in 2010, 2015, and 2020 that he had no criminal
record. (Collison Deel., Doc. 32-3, ljf 10; Kremer Deel., Doc. 26-4, ljf 6.) There is no evidence
that Asbeck engaged in any criminal or harassing behavior before the incidents alleged
by Doe, and Moeller suspended Asbeck' s employment immediately after Doe reported
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his misconduct for the first time on January 20, 2021. (Doe Dep., Doc. 33-1, Pg. ID 1001-
02, 1007, 1036, 1161; Doe Journal, Doc. 33-2, Pg. ID 1309.)
Pointing to her Declaration (Doc. 36), Doe contends that she reported Asbeck' s
sexual harassment to Moeller administrators on multiple occasions, giving Moeller and
the Archdiocese constructive knowledge of As beck's harassing behavior. (Response, Doc.
43, Pg. ID 1489.) But, as discussed above, the Court will not consider this declaration to
the extent that it contradicts Doe's previous deposition testimony that she never reported
sexual 	misconduct 	by 	Asbeck 	prior 	to 	January 	20, 	2021. 	The 	record 	therefore
demonstrates that Moeller and the Archdiocese had no actual or constructive knowledge
of As beck's propensity to commit acts of sexual harassment, so his harassment of Doe
could not have been foreseeable to them. Thus, Doe fails to show that Moeller and the
Archdiocese were negligent in hiring and retaining As beck, and Doe's claim for negligent
hiring, retention, and supervision fails as a result.
G. Jane Doe's Respondeat Superior Claim
Moeller and the Archdiocese next argue that Doe's respondeat superior claim fails
as a matter of law. (Motion for Summary Judgment, Doc. 29, Pg. ID 791.) Under the
doctrine of respondeat superior, "generally, an employer or principal is vicariously liable
for the torts of its employees or agents," but "[t]he application of respondeat superior
depends on the existence of control by a principal (or master) over an agent (or servant)."
Kirby Devs. LLC v. XPO Glob. Forwarding, Inc., No. 2:18-CV-500, 2021 U.S. Dist. LEXIS
170709, at *51 (S.D. Ohio Sep. 9, 2021) (cleaned up) (quoting Nat'l Union Fire Ins. Co. v.
Wuerth, 122 Ohio St. 3d 594,599 (Ohio 2009)). And, "[u]nder Ohio law, an employee acts
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within the scope of [his] employment if his conduct: (1) is of the kind which he is
employed to perform; (2) occurs substantially within the authorized limits of time and
space; and (3) is actuated, at least in part, by a purpose to serve the employer." Dodge v.
United States, 162 F. Supp. 2d 873, 884 (S.D. Ohio 2001) (citing Anderson v. Toeppe, 688
N.E.2d 538,543 (Ohio Ct. App. 1996)). "[A]n employer is not liable for independent self-
serving acts of his employees which in no way facilitate or promote his business." Kirby,
2021 U.S. Dist. LEXIS 170709, at *51-52 (quoting Byrd v. Faber, 57 Ohio St. 3d 56, 59 (1991)).
Moeller and the Archdiocese correctly assert that Doe's respondeat superior claim
fails because As beck's alleged sexual harassment of Doe was outside the scope of his
employment and could not have possibly been actuated to further the interests of Moeller
and the Archdiocese. (Motion for Summary Judgment, Doc. 29, Pg. ID 791.) Doe does not
respond to this argument, so it is conceded, and her respondeat superior claim fails for
that reason alone. See Campbell, 2013 U.S. App. LEXIS 26071, at *13-14. Doe points to Wille
v. Hunkar Labs., 724 N.E.2d 492 (Ohio Ct. App. 1998), which, she argues, allows for
vicarious liability for an employee's harassing behavior if an employer cannot assert the
Faragher-Ellerth defense. (Response, Doc. 43, Pg. ID 1489.) But, as discussed above,
Moeller and the Archdiocese successfully established the Faragher-Ellerth defense, so
Doe's respondeat superior claim fails regardless.
H. John Doe's Loss of Consortium Claim
Finally, Moeller and the Archdiocese argue that John Doe's claim for loss of
consortium fails as a matter of law. (Motion for Summary Judgment, Doc. 29, Pg. ID 1489.)
Both the Sixth Circuit and the Supreme Court of Ohio have held that when a claim for
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loss of consortium is a derivative action, it cannot exist absent the primary claim. See
Monak v. Ford Motor Co., 95 Fed. Appx. 758, 768 (6th Cir. 2004); Bowen v. Kil-Kare, Inc., 63
Ohio St. 3d 84, 92 (Ohio 1992) ("Where the action for loss of consortium is seen as purely
derivative of the original cause of action for the injury, it has been held that once the
original cause of action has been released, the action for loss of consortium is also
barred."). Here, John Doe's loss of consortium claim is derivative, and because all claims
against Moeller and the Archdiocese that could support this claim have been dismissed,
the loss of consortium claim is likewise dismissed. See Ganz v. Pappas Rests., Inc., No. 1:19-
CV-235, 2020 U.S. Dist. LEXIS 100213, at *9-10 (S.D. Ohio June 8, 2020).
II. 	Doe's Remaining Claim Against As beck
Having addressed Plaintiffs' claims against Moeller and the Archdiocese, the
Court now turns to Doe's sole remaining claim against Asbeck. But, the Court must first
determine whether to exercise its discretion to proceed with an analysis of this state-law
claim. A court "may decline to exercise supplemental jurisdiction over a claim ... [if it]
has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3).
"When all federal claims are dismissed before trial, the balance of considerations usually
will point to dismissing the state law claims." Musson Theatrical, Inc. v. Federal Express
Corp., 89 F.3d 1244, 1254 (6th Cir. 1996). "Residual jurisdiction should be exercised only
in cases where the interests of judicial economy and the avoidance of multiplicity of
litigation outweigh [the] concern over needlessly deciding state law issues." Moon v.
Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (cleaned up). And, "[t]he
discretion to decline supplemental jurisdiction over State-law claims extends to all stages
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of litigation, including summary judgment." Buddenberg v. Est. ofWeisdack, 711 F. Supp.
3d 712, 794 (N.D. Ohio 2024).
This case has been pending since 2023, and the record is both substantial and
complex. The parties have invested a significant amount of time and resources in
developing the record, including in briefing the merits of Plaintiffs' state-law claims.
Thus, the Court finds that the interests of judicial economy and the avoidance of
multiplicity of litigation outweigh the state interests at play here. The convenience to the
parties and fundamental fairness also cut in favor of resolving the remaining claim. See
Buddenberg, 711 F. Supp. 3d at 794 (citing Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 761
(6th Cir. 2000)); City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 172 (1997). Therefore,
having disposed of all other claims in this case, the Court exercises its discretion to
proceed with an analysis of Doe's sole remaining state-law claim against Asbeck.
Asbeck argues that he is entitled to summary judgment on Plaintiffs' remaining
intentional infliction of emotional distress ("IIED") claim against him. 	(Motion for
Summary Judgment, Doc. 34, Pg. ID 1390-93.) To succeed on a claim for IIED, Ohio law
requires that a plaintiff prove that "(1) defendants intended to cause emotional distress,
or knew or should have known that their actions would result in plaintiff's serious
emotional distress, (2) defendants' conduct was extreme and outrageous, (3) defendants'
actions proximately caused plaintiff's emotional injury, and (4) plaintiff suffered serious
emotional anguish." Miller v. Currie, 50 F.3d 373,377 (6th Cir. 1995) (citation omitted).
Asbeck asserts that the record lacks evidence that he committed any extreme and
outrageous conduct. (Asbeck Motion, Doc. 34, Pg. ID 1391.) "[C]onduct giving rise to an
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intentional infliction of emotional distress claim must be so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community." Long v. Ford Motor Co., 193
F. App'x 497,503 (6th Cir. 2006) (quotations omitted). Indeed, "mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities" are insufficient acts to give
rise to an IIED claim. Yeager v. Loe. Union 20, 6 Ohio St.3d 369,375 (Ohio 1983). "[SJexual
harassment in the workplace may constitute intentional infliction of emotional distress."
Zimmer v. Ashland Univ., No. 1:00-CV-630, 2001 U.S. Dist. LEXIS 15075, at *35 (N.D. Ohio
Sep. 5, 2001). But, "[s]exual harassment is not extreme and outrageous enough to sustain
a claim for IIED under Ohio law when, even if distasteful, the alleged comments and
actions 	were 	not, 	for 	example, 	severe 	or 	physically 	threatening 	or 	humiliating."
Heimberger v. Pritzker, No. 2:12-CV-1064, 2014 U.S. Dist. LEXIS 34504, at *31 (S.D . Ohio
Mar. 17, 2014) (cleaned up) (citing Harter v. Chillicothe Long-Term Care, Inc., 2012 Ohio
App. LEXIS 2153, at *11 (Ohio Ct. App. 2012)).
Because Doe's IIED claim has been dismissed as it relates to As beck's alleged
physical assaults of Doe, the Court considers only the evidence that relates to the alleged
non-physical sexual harassment. Here, the facts on the record show that Asbeck made
comments about Doe's clothing, nail polish choices, and hair, and that Asbeck would
periodically ask to hug Doe. (Doe Dep., Doc. 33-1, Pg. ID 1037, 1041-42.) Further, Asbeck
confessed his sexual desire for Doe, who is married, requesting that she engage in phone
sex with him and repeatedly asking her to engage in sexual acts, despite her refusals. (Id.
at Pg. ID 1044; Doe Journal, Doc. 33-2, Pg. ID 1304.) Asbeck also told Doe that he could
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not stand up when he looked at her in the office, suggesting his sexual arousal. (Doe
Journal, Doc. 33-2, Pg. ID 1304.) Asbeck asks the Court to disregard these facts, as they
are included in Doe's Declaration (Doc. 36), which he characterizes as "self-serving."
(Asbeck Reply, Doc. 45, Pg. ID 1516-20.) But, even without Doe's Declaration, the facts
on the record include ample evidence of this conduct. (See Doe Dep., Doc. 33-1, Pg. ID
1037, 1041-42, 1044; Doe Journal, Doc. 33-2, Pg. ID 1304.)
"To say that Ohio courts narrowly define' extreme and outrageous conduct' would
be something of an understatement." Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376
(6th Cir. 1999) (quoting Baab v. AMR Servs. Corp., 811 F. Supp. 1246, 1269 (N.D. Ohio
1993)). Because of this narrow interpretation, courts have granted summary judgment on
IIED claims involving severe and reprehensible conduct, including sexual harassment.
See, e.g., Colston v. Cleveland Pub. Library, 522 F. App'x 332, 336-37, 340 (6th Cir. 2013)
(affirming the finding of no extreme and outrageous conduct where a defendant made
demeaning comments about the plaintiff's appearance and clothing, suggested his
openness to having sex with the plaintiff, and talked openly with plaintiff about female
co-workers with whom he had been intimately involved); Hartleip v. McNeilab, Inc., 83
F.3d 767,777 (6th Cir. 1996) (affirming the finding of no extreme and outrageous conduct
where 	a 	co-worker 	threatened 	the 	plaintiff's 	employment stability, 	offered 	a 	job
promotion in exchange for apparent sexual favors, repeatedly called and wrote to her,
and discussed sexual fantasies involving her); Mullholand v. Harris Corp., No. 94-3725,
1995 U.S. App. LEXIS 37000, at *15 (6th Cir. Dec. 8, 1995) (affirming the finding of no
extreme and outrageous conduct where a co-worker asked the plaintiff for sex, spread
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rumors about her sleeping with him, and pushed her against a locker); see also Summerville
v. Ross/Abbott Labs ., No. 98-3517, 1999 U.S. App. LEXIS 21009, at *6-7 (6th Cir. Aug . 10,
1999) (affirming dismissal of IIED claim at pleading stage where defendants made
"unwelcome lewd jokes, comments, body movements and baring of body parts, as well
as sexual come-ons and unwelcome touching"); Wolfe v. Thermo Fisher Sci., Inc., No. 2:08-
CV-933, 2009 U.S. Dist. LEXIS 41702, at *5-9 (S.D . Ohio May 4, 2009) (dismissing IIED
claim at the pleading stage where a defendant made sexual comments to the plaintiff,
falsely accused her of sexual harassment, and falsely imprisoned her for four hours with
no food or water while interrogating and intimidating her).
With this corpus of case law in mind, and viewing the facts in this case in the light
most favorable to Doe as the non-moving party, the Court finds that a jury could not
reasonably conclude that Asbeck' s non-physical conduct was extreme and outrageous.
In reaching this conclusion, the Court in no way diminishes the nature of the alleged
conduct in this case or the effects felt by Plaintiff. But, given Ohio's extremely high bar to
demonstrate extreme and outrageous conduct, as well as the Court's inability to consider
the physical aspects of the alleged misconduct, Doe's remaining IIED claim against
Asbeck falls short on the extreme and outrageous prong. Accordingly, the Court grants
Asbeck's Motion for Summary Judgment on Doe's remaining claim for IIED.
CONCLUSION
For the foregoing reasons, the Court ORDERS the following:
1. 	Defendants Archdiocese of Cincinnati and Moeller High School's Motion
for Summary Judgment (Doc. 29) is GRANTED;
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2. 	Summary judgment is ENTERED in favor of Defendants Archdiocese of
Cincinnati and Moeller High School on all claims against them;
3. 	Defendant Michael Asbeck' s Amended Motion for Summary Judgment
(Doc. 34) is GRANTED;
4. 	Summary judgment is ENTERED in favor of Defendant Michael As beck on
the remaining claim against him;
5. 	Defendant Michael As beck's Motion for Summary Judgment (Doc. 28) is
DENIED AS MOOT; and
6. 	This matter is TERMINATED from the Court's docket.
IT IS SO ORDERED.
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