Roya Masaebi v. Arby’s Corporation

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0163n.06
No. 20–3425
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROYA MASAEBI,
Plaintiff – Appellant,
v.
ARBY’S CORPORATION,
Defendant – Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO
BEFORE: BATCHELDER, WHITE, and BUSH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. In this diversity case removed from the Ohio Court
of Common Pleas, plaintiff Roya Masaebi appeals the district court’s dismissal of her complaint
against Arby’s Restaurant Group, Inc. (“Arby’s”). We AFFIRM.
I.
Masaebi was born and raised in Iran. On June 12, 2018, Masaebi interviewed for an Arby’s
management position with Todd Richary, an Arby’s supervisor, and expressed her goal of using
her master’s degree in business administration to apply for a corporate position at Arby’s after
serving for two years as a general manager in an Arby’s restaurant. Masaebi had a follow-up
interview with Andre Irvin, the director of operations, which went well. On June 21, 2018, Richary
offered Masaebi a general management position starting at $57,000, in addition to a benefits
package that would go into effect sixty days after starting her position. Masaebi’s salary was set

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higher than an average entry-level manager due to her master’s degree and several years of prior
management experience.
Masaebi began training with certified training manager Randall Sneddon and general
manager Kim Edwards on July 16, 2018 at an Arby’s in Chillicothe, Ohio. Masaebi had been told
she would complete her training closer to her home at the Pickerington location, but because there
were no openings there she was instead sent to Chillicothe. Masaebi explained to Richary that
training in Chillicothe was a problem for her because it was over an hour drive from her home,
and she was concerned that leaving her son home alone for several hours at night could make her
vulnerable in a custody battle with her ex-husband. On August 8, Masaebi was told by Arby’s
training managers Brynn Schnell and Beth Campbell that she would be transferred to the
Pickerington location, which was managed by Tiffany Eiselben. Masaebi continued her training
in Pickerington soon thereafter.
According to Masaebi, throughout her short time at Arby’s, Schnell expressed her
dissatisfaction that Masaebi had a higher-than-normal starting salary and was planning to apply
for a corporate position after two years.
Entry-level managers are required to complete a series of written tests during their training.
English is Masaebi’s third language and she requires near silence during test tasking. She informed
Arby’s management of this need at the outset of her training, and no one raised an issue. When
Masaebi raised her concern about testing conditions, Schnell told her that “some people take longer
to learn” and assured Masaebi that even if she did not pass all the required tests after six months
at Arby’s, she would simply be moved down to an assistant-manager position until she successfully
completed all the necessary testing. Compl., R. 1-2 at PID 16.

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Despite Arby’s knowledge of Masaebi’s request for silent testing conditions, she was
forced to take the first test in an area where other employees were located, and she was distracted
throughout testing by employee conversations, cell phone calls, and other interruptions. Masaebi
did not pass the test the first time, but she passed on her second attempt, despite distractions. She
passed her seven-week written test as well. She was also making steady progress in her training.
On August 17, 2018, while managing a shift by herself at the Pickerington location, she
found a feather in a ham slider sandwich that an employee was about to serve to a customer. She
notified him, and he removed the ham portion of the sandwich with the feather but served the
remainder of the sandwich to the customer. Masaebi believed that serving the sandwich was a
breach of company policy, a breach of customer trust, and a violation of state and local law. She
took a photograph of the feather on the ham and showed it to Schnell. Schnell did not appear
disturbed, and to Masaebi’s knowledge, the employee who served the sandwich was not
disciplined.
On August 21, 2018, Masaebi went to Ohio Health for routine bloodwork. While chatting
with a nurse she knew from previous visits, Masaebi mentioned the incident with the ham-slider-
sandwich. On September 5, 2018, Masaebi left work early to attend to a family matter, after
receiving permission to do so. Schnell called Masaebi later that day to check on her, and she
assured Masaebi that leaving work due to a family emergency would not be held against her.
On September 14, 2018, Masaebi had a meeting with Schnell and Campbell. Schnell told
Masaebi she had a “funny story” and proceeded to report that she had gone for blood work at Ohio
Health and was told by her nurse that another Arby’s employee had mentioned a feather being in
a ham sandwich. Compl. at PID 18. Then Schnell and Campbell discussed Masaebi’s test results
and told Masaebi her employment was being terminated. Masaebi had never been disciplined prior

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to the termination and asserts that her abrupt firing violated Arby’s established progressive
discipline policy. After her termination, several Arby’s supervisors told Masaebi that they did not
know of anyone having been terminated for the “stated reasons” or as abruptly as Masaebi.
Count I of Masaebi’s complaint alleges discrimination and retaliation in violation of Ohio
Rev. Code § 4112. As part of Count I, Masaebi alleges that she was terminated, at least in part,
based on national-origin discrimination. She also claims that reporting the ham-slider-sandwich
incident to her supervisors was a protected activity, and that Schnell retaliated against her for
engaging in that protected activity. Count II of Masaebi’s complaint alleges retaliation under Ohio
Rev. Code § 4113.52. As part of Count II, Masaebi claims that she took the actions required to
report a violation of state law, specifically the serving of a tainted sandwich, to her supervisor; that
no one reported back to Masaebi regarding her report; and that she was terminated soon thereafter
under “dubious circumstances.” Masaebi claims that her termination was retaliation for engaging
in protected activity. As part of Count III, Masaebi claims that the actions of Arby’s, carried out
by Schnell, were extreme and outrageous, caused Masaebi severe emotional distress and
psychological harm, and that Arby’s either intended to cause Masaebi emotional harm, or knew or
should have known that serious emotional distress would result.
Arby’s moved to dismiss all three of Masaebi’s claims under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim on which relief may be granted. Masaebi responded,
arguing that she had alleged sufficient facts to proceed on Count I, though she conceded that her
claims of retaliation based on the “ham slider incident” could not support a claim under Ohio Rev.
Code § 4112, and therefore requested leave to amend her complaint to incorporate allegations
regarding her language barrier and testing conditions that were included in the facts section of the
complaint into the section specifically relating to Count I. Masaebi conceded that her claim under

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Ohio Rev. Code § 4113.52, alleged in Count II, was time barred, but she requested leave to amend
her complaint to include an alternative claim for retaliation in violation of Ohio common law.
Masaebi abandoned her claim for intentional infliction of emotional distress (Count III).
The district court granted Arby’s motion to dismiss all three claims and denied leave to
amend the complaint. The district court found that Masaebi’s discrimination claim under Count I
“is devoid of any facts which could produce an inference that Defendant unlawfully considered
Plaintiff’s national origin when conducting her training, administering her tests, or terminating
her.” Masaebi v. Arby’s Corp., No. 2:19-cv-5271, 2020 WL 1275724, at *4 (S.D. Ohio Mar. 17,
2020). The district court also found that “the [c]omplaint contains no facts which could support
an inference that employees of non-Middle Eastern descent were treated differently” and noted
that Plaintiff had not requested leave to amend this portion of her complaint. Id. Regarding
Masaebi’s retaliation claim under Count I, the district court noted that Masaebi conceded that
“reporting the feather incident does not involve any discriminatory action or practice,” and that
Masaebi requested leave to amend this portion of Count I to “label paragraphs 22 through 26” of
the complaint, which discussed her language barrier and request for test-taking accommodations
“as in connection with Count I.” Id. at *5. The district court found that the proposed amendment
would be futile because Masaebi’s discussion of her language barrier and request for distraction-
free test-taking conditions did not constitute “taking an overt stand against discriminatory activity”
as required for a retaliation claim under Ohio law. Id. at *6. The district court dismissed Count I
in its entirety and denied Masaebi leave to amend.
As to Count II, the district court noted Masaebi’s concession that her claims under Ohio
Rev. Code § 4113.52 were barred by the statute of limitations, and it addressed her request for
leave to amend to allege a similar claim under Ohio common law. The district court found that

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amendment of Count II would be futile because a “common-law cause of action is not available to
employees terminated for whistleblowing,” and Plaintiff otherwise “identifies no specific public
policy which her termination puts in jeopardy” as required for retaliation claims under Ohio
common law. Id. at *7.
The district court dismissed Count III based on Masaebi’s concession that she would not
continue to pursue her intentional infliction of emotional distress claim.
On appeal, Masaebi argues: (1) the district court erred in finding that she had not alleged
sufficient facts to support a claim for national-origin discrimination and retaliation under Ohio
Rev. Code § 4112; and (2) the district court erred in denying Masaebi leave to amend the
allegations in Count I. Masaebi does not appeal the district court’s dismissal of Counts II and III,
nor the district court’s denial of leave to amend Count II.
II.
“We review de novo a district court's dismissal of a plaintiff's complaint for failure to state
a claim.” Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006) (citing Marks v. Newcourt Credit
Grp., Inc., 342 F.3d 444, 451 (6th Cir. 2003)). We must construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true. See Harbin–Bey v. Rutter, 420 F.3d
571, 575 (6th Cir. 2005). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“Specific facts are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). But “[f]actual allegations must be enough to raise a right to relief above the speculative
level” and to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570.

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A plaintiff is required to “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
This Court “review[s] the denial of a motion to amend under the abuse-of-discretion
standard, ‘unless the motion was denied because the amended pleading would not withstand a
motion to dismiss, in which case the standard of review is de novo.’” Colvin v. Caruso, 605 F.3d
282, 294 (6th Cir. 2010) (quoting Total Benefits Planning Agency, Inc. v. Anthem Blue Cross &
Blue Shield, 552 F.3d 430, 437 (6th Cir. 2008)).
Masaebi argues that the district court erred in finding that her complaint failed to state a
claim for national-origin discrimination under Ohio Rev. Code § 4112. Ohio Rev. Code § 4112.02
makes it unlawful for “any employer, because of the . . . national origin . . . of any person, to
discharge without just cause, to refuse to hire, or otherwise discriminate against that person with
respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or
indirectly related to employment.” Ohio Rev. Code § 4112.02(A). “[F]ederal case law interpreting
Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S. Code, is generally
applicable in cases involving alleged violations” of Ohio Rev. Code § 4112, and “[t]he starting
point for judicial inquiry into complaints alleging disparate treatment” is McDonnell Douglas v.
Green, 411 U.S. 792 (1973). Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil
Rights Comm'n, 421 N.E.2d 128, 131 (Ohio 1981). Under McDonnell Douglas, a prima facie case
of discrimination requires a showing that the plaintiff: (1) is a member of a protected class; (2) was
qualified for her job; (3) suffered an adverse employment decision; and (4) was replaced by a
person outside the protected class or treated differently than similarly situated nonprotected
employees. See White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). As the

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district court noted in its opinion, the prima facie case under McDonnell Douglas is an evidentiary
standard applicable at summary judgment or trial, not a pleading requirement. See Swierkiewicz
v. Sorema, 534 U.S. 506, 510 (2002).
Masaebi argues that her complaint set forth sufficient factual allegations to survive a
motion to dismiss under the Twombly/Iqbal pleading standards and alleged all elements of a prima
facie case of discrimination. First, her complaint included the fact that she was born in Iran and
“emigrated to the United States many years ago,” and thus she sufficiently alleged that she is a
member of a protected class. Additionally, she argues that she satisfied the second McDonnell
Douglas prong by pleading that she “believes she was terminated, at least in part, due to her
manager’s animus toward Middle Eastern immigrants” and that “there is nothing to suggest she
was terminated for job performance issues.” Appellant Br. 20. Further, Masaebi asserts that her
allegations that she has a master’s in business administration and that she was “making steady
progress throughout her training” were adequate to satisfy the requirement that she was qualified
for her position. Id. Finally, Masaebi argues that she adequately alleged that she was treated
differently than nonprotected, similarly situated individuals because her complaint “sets forth
claims that she was treated differently based on her language barrier, including that she was forced
to take tests in a loud, distracting environment, despite Arby’s being aware of this issue, which
caused her to have to take the test again.” Id. at 20–21.
We agree with the district court that Masaebi’s complaint “contains no facts which could
support an inference that employees of non-Middle Eastern descent were treated differently.”
Masaebi, 2020 WL 1275724, at *4. Masaebi complains that she was forced to take a test in a loud
environment, despite requesting a silent testing-space, but what Masaebi complains of is not that
she received disparate treatment, but that she was not given special treatment to accommodate her

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language issues. Without an accompanying allegation suggesting that other employees’ requests
for accommodations were honored, this does not establish that Masaebi was treated differently
based on her national origin. Moreover, Masaebi admits she was able to pass the first test when it
was administered on a second occasion and was also able to pass a subsequent written test.
Therefore, the district court did not err in determining that Masaebi does not sufficiently allege
that employees of non-Middle Eastern descent were treated differently.
Masaebi also argues that pursuant to Swierkiewicz, she was not required to prove every
element of a prima facie discrimination case prior to obtaining discovery. According to Masaebi,
“[b]ecause the case was dismissed before any discovery could take place, she was not able to
explore her [] allegations based on her beliefs to determine the level of national origin animus of
her supervisors and the role it played in her ultimate termination.” Appellant Br. 21. It is true that
under Swierkiewicz, a plaintiff is not required to allege every element of a prima facie case under
the McDonnell Douglas framework. But the fact that Masaebi need not allege every element of a
prima facie case under McDonnell Douglas does not excuse the requirement that she allege facts
supporting a plausible inference of national origin discrimination to state a claim under Ohio Rev.
Code § 4112. See Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (“[T]he Supreme Court
established a ‘plausibility’ standard in Twombly and Iqbal for assessing whether a complaint’s
factual allegations support its legal conclusions, and that standard applies to causation in
discrimination claims.”). Thus, Masaebi was required to allege “sufficient ‘factual content’ from
which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the reasonable
inference’” that Arby’s terminated Masaebi or otherwise discriminated against her with respect to
her employment “because of” her national origin. Id. (quoting Iqbal, 556 U.S. at 678).

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The district court found that Masaebi’s complaint was “devoid of any facts which could
produce an inference that Defendant unlawfully considered Plaintiff’s national origin when
conducting her training, administering her tests, or terminating her.” Masaebi, 2020 WL 1275724,
at *4. We agree with the district court that Masaebi’s complaint contained no factual allegations
from which an inference of animus can be drawn, beyond the mere assertion that Plaintiff “believes
she may have been terminated based on her managers’ animus toward Middle Eastern
immigrants.” Compl. at PID 18. Masaebi provides no basis for her belief that her managers were
biased against Middle Eastern immigrants, nor any facts allowing the court to infer that
employment decisions, including Masaebi’s firing, were motivated by her national origin.
Masaebi’s allegation of animus is the type of “‘naked assertion[]’ devoid of ‘further factual
enhancement’” that is prohibited under Twombly and Iqbal. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). Although dismissal on the pleadings is often inappropriate in
employment discrimination cases where evidence of motive and discriminatory intent is frequently
exclusively in the hands of defendants, this constitutes the rare case in which the allegations
regarding discrimination were so conclusory that no plausible claim could be inferred. Thus, the
district court did not err in dismissing Masaebi’s national origin discrimination claim.
Masaebi’s retaliation claim fails for the same reason. Under Ohio Rev. Code § 4112, it is
unlawful for an employer to “discriminate in any manner against any other person because that
person has opposed any unlawful discriminatory practice defined in this section or because that
person has made a charge, testified, assisted, or participated in any manner in any investigation,
proceeding, or hearing.” Ohio Rev. Code § 4112.02(I). But Masaebi’s complaint does not make
any allegations that she “opposed any unlawful discriminatory practice.” Id. Masaebi claims that
her complaint alleged that she raised concerns “regarding her treatment due to the language

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barrier.” Appellant Br. 23. But asking to have a quiet space to take an exam due to a language
barrier does not constitute opposition to an “unlawful discriminatory practice.” Ohio Rev. Code
§ 4112.02(I). The district court correctly determined that “Plaintiff’s contention that she discussed
her language barrier with her supervisor is not taking an overt stand against discriminatory
activity,” and thus she did not meet a key requirement under Ohio law for alleging an activity
subject to protection from retaliation. See Masaebi, 2020 WL 1275724, at *5 (quoting Motley v.
Ohio Civ. Rights Comm’n, No. 07AP-923, 2008 Ohio App. LEXIS 1958, at *5 (Ohio Ct. App.
May 13, 2008)). Masaebi not only failed to allege that she took an overt stand against
discrimination; she also failed to allege that she expressed any opposition to a discriminatory
practice at all. Therefore, we affirm the district court’s dismissal of Masaebi’s retaliation claim.
Finally, Masaebi argues that the district court abused its discretion in denying her leave to
amend her allegations of retaliation.1 But Masaebi’s proposed amendments to her retaliation claim
merely involved explicitly incorporating her factual allegations regarding her requests for testing
accommodations due to her language barrier directly into Count I of the complaint, to replace her
allegations about the alleged “ham slider incident.” She did not indicate any intention to add
additional facts to bolster her retaliation claim. Given that the district court examined all the facts
Masaebi intended to reiterate explicitly in Count I when it analyzed the sufficiency of her
retaliation claim, it was not abuse of discretion for the district court to find that such an amendment
would be futile. Although a district court’s discretion to deny leave to amend is “limited by
Fed.R.Civ.P. 15(a)’s liberal policy of permitting amendments to ensure the determination of claims
1 Masaebi did not propose specific amendments to her discrimination claim below, and the district court interpreted
this to mean that Masaebi did “not request leave to amend this claim.” Masaebi, 2020 WL 1275724, at *5. On appeal,
Masaebi’s argument regarding leave to amend is somewhat vague, but she does not specifically address the denial of
leave to amend the discrimination claim, and thus, we assume she only challenges the denial of leave to amend the
retaliation claim.

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on their merits,” Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987), a court need not grant
leave to amend “where amendment would be ‘futile,’” Miller v. Calhoun County, 408 F.3d 803,
817 (6th Cir. 2005) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Given that Plaintiff
merely requested leave to rearrange the factual allegations in the complaint, and those specific
factual allegations were considered by the court when ruling on the motion to dismiss, there is no
reason to believe that amendment would have made any difference. Thus, the district court did not
err in denying leave to amend.
III.
For the foregoing reasons, we AFFIRM.

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