SARA LIOI, District Judge.
Before the Court is what was originally brought solely as a motion to dismiss by defendant Superior Dairy, Inc. ("defendant" or "Superior") pursuant to Fed. R.Civ.P. 12(b)(6). (ECF No. 4.) Plaintiff Terry Kovac ("plaintiff" or "Kovac") has filed a memorandum in opposition (ECF No. 7), and Superior has filed a reply (ECF No. 8). In order to dispose of an issue raised in the briefing regarding whether plaintiff's claims are subject to mandatory arbitration, the Court converted the motion to dismiss on that particular issue into a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Accordingly, the Court invited the parties to file supplemental briefing on the arbitration issue, and the parties did so. (ECF Nos. 10-12.) The parties also filed a joint stipulation pertaining to the arbitration issue. (ECF No. 9.) The matter is ripe for determination. For the reasons that follow, defendant's motion for summary judgment is
The following background information is alleged by Kovac. At some time prior to the events underlying this case, Kovac was in an accident that left one of his legs "severely mangled." (ECF No. 1-3 at ¶ 4.) On June 12, 2006, Superior hired Kovac through the Bureau of Vocational Rehabilitation as a "lot trailer transporter," which entailed driving a "Yard Tractor." (ECF No. 1-3 at ¶ 6; ECF No. 4-2 at 46.)
Kovac worked under these restrictions until September 2009, when Superior underwent a change of management. (ECF No. 1-3 at ¶ 10.) Soon after, Superior scheduled Kovac to work outside his permanent time restrictions. (ECF No. 1-3 at ¶ 11.) Kovac notified Superior, and the issue was resolved. (ECF No. 4-2 at 47.) In November 2009, Kovac was "forced" by Superior to take twelve weeks of sick leave in order to be examined by a doctor that Superior hired to re-examine Kovac's restrictions and medication. (ECF No. 1-3 at ¶ 13.) Kovac was required to provide all of his personal medical records to Superior as part of this evaluation. (ECF No. 1-3 at ¶ 14.)
The examining physician upheld Kovac's restrictions, and Kovac returned to work at Superior on March 1, 2010. (ECF No. 1-3 at ¶¶ 15-16.) Upon his return, however, Kovac was assigned the position of line lift operator, one of the two positions outside his job restrictions. (ECF No. 1-3 at ¶ 16.) He informed his supervisor, but was threatened with termination if he did not perform the job. (ECF No. 4-2 at 47.) Subsequently, Kovac worked as a line lift operator for several days, experiencing "severe issues with his leg," at which point he was moved to a position within his restrictions. (ECF No. 1-3 at ¶ 17.)
On December 14, 2010, Superior once again assigned Kovac to a job outside his job restrictions, the leak check position, this time on a permanent basis. (ECF No. 4-2 at 47.) At the time, Kovac was senior to all but one member of the third shift, and there were three other jobs on the shift that Kovac could have performed pursuant to his medical restrictions. (ECF No. 4-2 at 47.) Upon informing Superior that he would need to consult with his doctor before performing a job outside of his restrictions, Kovac was sent home. (ECF No. 4-2 at 47.) On December 16, 2010, Kovac filed a grievance with his union under Article IX of the union's collective bargaining agreement (the "CBA"), seeking reinstatement to the "loader" position until his doctor could review his ability to perform the leak check position. (ECF No. 9 at 167, 171.) That same day, Superior terminated Kovac for "insubordination" for refusing to work the leak check position. (ECF No. 4-2 at 47.) On December 17, 2010, Kovac filed a second grievance with the union, this time alleging "discharge without just cause." (ECF No. 9 at 172.) The union decided not to pursue either of Kovac's grievances to arbitration
On April 11, 2011, Kovac filed a dual charge with the Equal Employment Opportunity Commission ("EEOC") and the Ohio Civil Rights Commission ("OCRC"), asserting disability discrimination and retaliation. (ECF No. 4-2 at 46.) The OCRC investigated Kovac's allegations, ruling in a letter of determination issued September 29, 2011, that there was no probable cause to believe Superior had discriminated against Kovac and recommending that the matter be dismissed. (ECF No. 4-2 at 53.) Kovac applied for reconsideration of the OCRC's decision, and on January 12, 2012, the OCRC upheld its determination of no probable cause and ordered dismissal, finding that Kovac was indeed fired for insubordination, which was "a legitimate, non-discriminatory" ground for termination. (ECF No. 4-2 at 53.) Kovac exercised his right to request review of the OCRC's findings from the EEOC, and the EEOC adopted the OCRC's findings, sending Kovac a notice of dismissal and right-to-sue letter on February 24, 2012. (ECF No. 4-2 at 59.)
On May 29, 2012, Kovac brought the present action in the Stark County Court of Common Pleas, alleging disability discrimination by Superior in violation of the Americans with Disabilities Act ("ADA") and Ohio Rev.Code § 4112.02, as well as intentional infliction of emotional distress. (ECF No. 1-3 Ex. B.) On June 11, 2012, Superior removed the action to this Court (ECF No. 1 at 1) pursuant to 28 U.S.C. §§ 1331 and 1441 and filed the subject motion to dismiss Kovac's complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 4 at 20).
Superior makes four separate arguments in its dispositive motion: (1) Kovac's federal discrimination claim is time-barred; (2) Kovac failed to timely appeal his adverse OCRC determination; (3) Kovac's negligent and/or intentional infliction of emotional distress claim fails to state a claim for which relief can be granted;
In briefing this motion, defendant has included exhibits, and both parties have submitted affidavits. Ordinarily, such "[m]atters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss," Weiner v. Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir.1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989)), and a court that considers such matters must first convert the motion to dismiss to one for summary judgment, Fed.R.Civ.P. 12(d). However, "[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the] defendant's motion to dismiss, so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008). EEOC charges and related documents, including right to sue letters, are public records of which the Court may take judicial notice in ruling on a motion to dismiss without having to convert the motion into one for summary
Exhibits A-D of Superior's motion to dismiss consist of OCRC and EEOC documents that are part of the public record. Accordingly, the Court may consider these exhibits without converting the motion to dismiss to a motion for summary judgment.
In contrast, Kovac's affidavit, attached to his opposition to Superior's motion to dismiss, may not be considered by the court in ruling on a 12(b)(6) motion. Because the affidavit is not essential to the Court's ruling on defendant's motion, the Court will not consider it. Likewise, the Court will not consider the affidavit from Superior's Human Resources Manager attached to Superior's motion.
Similarly, Exhibit E, the CBA between Superior and its employees' union, is not public record and is not mentioned in Kovac's complaint. As a result, for the Court to consider the CBA, it must convert the motion to dismiss into a motion for summary judgment. However, the CBA is only relevant to one of the four arguments raised in defendant's motion: that Kovac consented to arbitration of all his claims. The Court can rule on the other three arguments — that Kovac's federal discrimination claim is time-barred, that Kovac failed to timely appeal his adverse OCRC determination, and that Kovac's negligent and/or intentional infliction of emotional distress claim fails to state a claim — without referencing the CBA. For that reason, the Court only converts defendant's motion to dismiss to a motion for summary judgment on the arbitration issue and only considers Exhibit E, the CBA, for the same. The parties were given notice of the conversion and filed supplemental briefing on only that issue.
Under Fed.R.Civ.P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. 2505.
The party opposing the motion may not rely merely on allegations or denials in its own pleading; rather, by affidavits or materials in the record, they must set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1). A movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of an essential element in the pleadings, depositions, answers to interrogatories,
Rule 56(c)(4) requires that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Mere conclusory allegations "are not evidence and are not adequate to support a motion for summary judgment." Miller v. Aladdin Temp-Rite, LLC, 72 Fed.Appx. 378, 380 (6th Cir.2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).
Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D.Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id. In ruling on a motion for summary judgment, the court may not take into account credibility, the weight of the evidence, or the drawing of inferences from the facts. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. Evaluated thusly, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," summary judgment is improper. Id. at 248, 106 S.Ct. 2505.
Defendant's argument that plaintiff agreed to arbitrate his claims is effectively a motion to compel arbitration. "In evaluating motions or petitions to compel arbitration, courts treat the facts as they would in ruling on a summary judgment." Rupert v. Macy's, Inc., No. 1:09CV2763, 2010 WL 2232305, at *3 (N.D.Ohio June 2, 2010) (quoting Raasch v. NCR Corp., 254 F.Supp.2d 847, 851 (S.D.Ohio 2003)); see also Great Earth Cos. v. Simons, 288 F.3d 878, 889 (6th Cir.2002) (stating that "[i]n order to show that the validity of [an arbitration agreement] is `in issue,' the party opposing arbitration must show a genuine issue of material fact as to the validity of the agreement to arbitrate," a showing that mirrors the summary judgment standard); Arnold v. Rent-a-Center, Inc., Civil Action No. 11-18-JBC, 2011 WL 1810145, at *2 (E.D.Ky. May 12, 2011) (treating a motion to compel arbitration "as one for summary judgment under Fed. R. Civ. Pro. 56(c)"); Lyman v. Greater Boston Radio, Inc., No. 09-14502, 2010 WL 2557831, at *3 (E.D.Mich. June 21, 2010) (same).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[,]" Fed.R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although this pleading standard does not require great detail, the factual allegations in the
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.
The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., manifests "a liberal federal policy favoring arbitration agreements." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). "To enforce this dictate, [the FAA] provides for a stay of proceedings when an issue is referable to arbitration and for orders compelling arbitration when one party has failed or refused to comply with an arbitration agreement." Javitch v. First Union Sec., Inc., 315 F.3d 619, 624 (6th Cir.2003) (citing 9 U.S.C. §§ 3, 4). In cases where all claims are referred to arbitration, however, the litigation may be dismissed rather than merely stayed. Ozormoor v. T-Mobile USA, Inc., 354 Fed.Appx. 972, 975 (6th Cir.2009).
The Sixth Circuit applies a four-pronged test to determine whether to grant motions to dismiss or stay the proceedings and compel arbitration:
Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir.2000).
Article X of the CBA, entitled "Arbitration," calls for binding arbitration of any "grievance, controversy or dispute" that remains unsettled after the grievance procedure, also detailed in the CBA, is exhausted. (ECF No. 4-2 at 73.) Section 1 of Article IX, entitled "Grievances," defines a "grievance" as "any controversy or dispute arising between the parties to this Agreement, as to the interpretation or application of the terms and provisions of this Agreement." (ECF No. 4-2 at 72.) Section 2 of Article IX begins:
(ECF No. 4-2 at 72-73.)
Citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009), defendant argues that the aforementioned language in the CBA "clearly and unmistakably" requires Kovac to arbitrate his ADA claim. Kovac attempts to distinguish Pyett in arguing that the CBA is not clear and unmistakable.
The proper starting point for analysis of this issue, however, is not Pyett, but Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998).
Sixth Circuit case law shows that the "clear and unmistakable" standard is not easily met. In Bratten, the court noted that "post-Wright courts appear to be in agreement that a statute must specifically be mentioned in a CBA for it to even approach Wright's `clear and unmistakable' standard." 185 F.3d at 631 (collecting cases).
With respect to Kovac's state law discrimination claim, Superior argues that "[t]he analysis is altogether different" because "no federally protected interest is at stake[,]" that the analysis must be made under Ohio law, and that Ohio law requires arbitration. (ECF No. 10 at 181-84.) In reality, the analysis under Ohio law is exactly the same, because Ohio courts have explicitly adopted Wright's "clear and unmistakable" standard. Smith v. Bd. of Trs. of Lakeland Cmty. Coll., 746 F.Supp.2d 877, 897 (N.D.Ohio 2010); see also Minnick v. Middleburg Heights, No. 81728, 2003 WL 22215612, at *5 (Ohio Ct. App. Sept. 25, 2003) (quoting Wright and adopting the Wright standard).
Defendant asks the Court to recognize "the unusual sweep of the grievance and arbitration language" in the CBA; arguing, essentially, that use of broad, non-specific language evidences a "clear and unmistakable" agreement to arbitrate statutory employment discrimination claims. (ECF No. 10 at 170.) Defendant would turn the law completely on its head. It is exactly this sort of general arbitration provision, without any reference to specific antidiscrimination statutes, that the Court in Wright found failed to constitute a waiver of statutory discrimination claims. See Wright, 525 U.S. at 80, 119 S.Ct. 391 ("We will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is `explicitly stated.'") Here, the only reference to discrimination in the CBA is a general antidiscrimination provision, located far from the grievance and arbitration sections, proclaiming that "[t]he Union and the Company will continue their policies of nondiscrimination because of race, color, religion, sex, age, national origin or disability." (ECF No. 4-2 at 67.) The law is clear that such provisions do not constitute a waiver. See Kennedy, 215 F.3d at 655; Bratten, 185 F.3d at 631.
Because the CBA does not contain a "clear and unmistakable" waiver of employees' rights to pursue statutory nondiscrimination claims in a judicial forum, Superior's motion to compel arbitration lacks merit and is denied.
Title VII of the Civil Rights Act of 1964 states that, should the EEOC elect not to prosecute an employment discrimination charge, the EEOC "shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge...." 42 U.S.C. § 2000e-5(f)(1). "[T]he ninety-day filing requirement of 42 U.S.C. § 2000e-5(f)(1) is not a jurisdictional requirement but, instead, is a timing requirement similar to a statute of limitations, subject to waiver, estoppel and equitable tolling." Truitt v. Cnty. of Wayne, 148 F.3d 644, 646-47 (6th Cir.1998).
"The statute of limitations is an affirmative defense, see Fed.R.Civ.P. 8(c), and a plaintiff generally need not plead the lack of affirmative defenses to state a valid claim, see Fed.R.Civ.P. 8(a)." Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.2012) (citing Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)). "For this reason, a motion under Rule 12(b)(6), which considers only the allegations in the complaint, is generally an inappropriate vehicle for dismissing a claim based upon the statute of limitations. But, sometimes the allegations in the complaint affirmatively show that the claim is time-barred." Cataldo, 676 F.3d at 547. In those instances, dismissal of the claim under Rule 12(b)(6) is appropriate. Id.
Superior argues in its motion that notice is given, and the ninety-day limitations period begins to run, at the very moment the EEOC places the right-to-sue letter to a claimant in the mail. (ECF No. 7 at 144.) However, the Sixth Circuit has explicitly ruled that, under § 2000e-5(f)(1), the limitations period begins running on the fifth day following the EEOC's mailing of a right-to-sue notice to a claimant's residential address of record, based upon a presumption of actual delivery and receipt by that time. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir.2000).
In a footnote, Superior also argues that, even with the five-day rule, Kovac's federal discrimination claim is untimely, citing LR 4.2(c), which allegedly establishes a presumption that mail will have reached an addressee "within four days." (ECF No. 4-1 at 31 n. 7.) LR 4.2(c) deals with service of process, not the mailing of an EEOC right-to-sue notice. Moreover, a presumption that delivery occurs "within four days" operates identically to a rule whereby a statute of limitations began to run on the fifth day following mailing.
Applying the Sixth Circuit's five-day rule, Kovac's federal discrimination claim was timely filed. The EEOC mailed its right-to-sue notice on February 24, 2012, and therefore the limitations period began to run five days later, on February 29, 2012. Kovac thus had ninety days from February 29, 2012 to file his claim, encompassing the period up to and including
Superior also asserts that Kovac's state law discrimination claim, too, should be dismissed as untimely. According to Superior, because Kovac failed to appeal the OCRC's unfavorable January 12, 2012 decision on reconsideration, his claim under Ohio Rev.Code § 4112.02 is time-barred. (ECF No. 4-1 at 33-34.)
The Ohio Supreme Court has construed Chapter 4112 of the Ohio Revised Code liberally, finding that an individual may file a separate, independent civil action after having commenced a proceeding for disability discrimination with the OCRC, even in the event the OCRC had responded unfavorably and the claimant abandoned the administrative appeal process. Smith v. Friendship Village of Dublin, Inc., 92 Ohio St.3d 503, 751 N.E.2d 1010, 1014 (2001); see also Reid v. Plainsboro Partners, III, 2010 WL 3610931 (Ohio Ct.App. Sept. 16, 2010) (noting that, under Friendship Village, the filing of an independent civil action under Ohio Rev.Code § 4112.99 is distinct from seeking judicial review of an order of the OCRC and, thus, not subject to the thirty-day limit in Ohio Rev. Code § 4112.06(H)).
Under Ohio law, the elements of a claim of intentional infliction of emotional distress ("IIED")
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir.2008) (quoting Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557, 698 N.E.2d 503, 506 (1997)). Conduct giving rise to an IIED 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 Fed.Appx. 497, 503 (6th Cir.2006) (quoting Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 453 N.E.2d 666, 671 (1983) (overruled on other grounds)). "[T]o say that Ohio courts narrowly define `extreme and outrageous' conduct would be something of an understatement." Baab v. AMR Servs. Corp., 811 F.Supp. 1246, 1269 (N.D.Ohio 1993). "Serious" emotional distress must be "severe and debilitating." Long, 193 Fed.Appx. at 503 (quoting Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759, 765 (1983)).
Under Ohio law, an at-will employee may be terminated at any time for any lawful reason or for no reason at all. Herrington v. DaimlerChrysler Corp., 262 F.Supp.2d 861, 864 (N.D.Ohio 2003) (citing Mers. v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150, 153 (1985)). An employee's termination, "even if based upon discrimination, does not rise to the level of `extreme and outrageous' conduct without proof of something more. If such were not true, then every discrimination claim would simultaneously become a cause of action for the intentional infliction of emotional distress." Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir.1999) (applying Ohio law).
In Count Three of his complaint, Kovac alleges, in pertinent part:
(ECF No. 1-3 at ¶¶ 41-43.)
In the instant matter, while Kovac may arguably have satisfied the requirements for pleading the third and fourth elements of an IIED claim in a "bare bones" fashion, Kovac has not satisfactorily pleaded the first and second elements. With respect to the first element, Kovac has not pleaded that Superior intended to cause him emotional distress, nor that Superior knew or should have known that its conduct would result in serious emotional distress. With respect to the second element, Kovac has not supported his legal conclusion with factual allegations that might plausibly give rise to a finding that
Because Kovac's complaint fails to state an IIED claim that is plausible on its face, Superior's motion to dismiss Count Three is granted.
For the foregoing reasons, Superior's motion for summary judgment (motion to compel arbitration) is
