Bailey v. East Liverpool City Hospital et al.
Memorandum of Opinion and Order For the reasons set forth herein, the Court grants in part and denies in part the Defendants' Motion to Dismiss. ECF No. 11 . The Court grants the motion to dismiss as to Cheryl Dieringer, East Liverpool City Hospital, and East Liverpool City Hospital, Growing forTomorrow and Today with prejudice. The Court denies the motion to dismiss, without prejudice, as to River Valley Health Partners. Judge Benita Y. Pearson on 8/31/2015. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
BARBARA L. BAILEY,
EAST LIVERPOOL CITY HOSPITAL, et
CASE NO. 4:14-cv-2809
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 11]
Pending before the Court is a motion to dismiss filed by Defendants East Liverpool City
Hospital; East Liverpool City Hospital, Growing for Tomorrow and Today; River Valley Health
Partners; and Cheryl Dieringer (“Defendants”). ECF. No. 11. The Court has been advised,
having reviewed the record, the parties’ briefs, and the applicable law. For the reasons provided
below, the Court grants in part and denies in part Defendants’ Motion to Dismiss.
Plaintiff Barbara L. Bailey (“Bailey”) brought this lawsuit against Defendants alleging
age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et seq. ECF No. 1. Bailey alleges that, during a meeting on April 29, 2013,
Defendant Dieringer asked Bailey if she would be retiring soon. ECF No. 1 PageID #: 3 at ¶¶
14-15. Dieringer asked because Bailey was next in line for labor training, and the Hospital did
not want to train Bailey if she did not plan on staying with the Hospital. ECF No. 1 PageID #: 3
at ¶ 16. Bailey asked if she could respond to the training offer upon her return from vacation;
Dieringer responded affirmatively. ECF No. 1 PageID #: 3 at ¶ 18.
While on vacation, Bailey contacted Dieringer to see if the training was still available.
ECF No. 1 PageID #: 3 at ¶ 19. Dieringer replied that training was no longer available because
the hospital was short staffed. ECF No. 1 PageID #: 3-4 at ¶¶ 19-20. After returning from
vacation, Bailey learned that a younger, less-experienced nurse was being trained instead of her.
ECF No. 1 PageID #: 4 at ¶ 21. Bailey filed a union grievance and was later informed she would
be the next nurse to receive labor and delivery training. ECF No. 1 PageID #: 4 at ¶ 22. Bailey
began training in March of 2014, but has not been able to finish training. ECF No. 1 PageID #: 4
at ¶ 23. Bailey subsequently suffered an injury while at work, and she contends that the delay in
training left her ineligible for leave under the Family Medical Leave Act and forced her to pay
health insurance expenses out of pocket. ECF No. 1 PageID #: 4 at ¶¶ 24, 26.
Bailey timely filed the above-captioned action. ECF No. 1. Defendant, The City
Hospital Association d/b/a East Liverpool City Hospital, filed an answer and does not join the
pending motion to dismiss. ECF No. 10. On that same date, Defendants Cheryl Dieringer, East
Liverpool City Hospital, East Liverpool City Hospital, Growing for Tomorrow and Today, and
River Valley Health Partners moved to dismiss Bailey’s case against them with prejudice. ECF
No. 11. Bailey opposed Defendants’ motion to dismiss. ECF No. 14. Defendants filed a reply
in support of their motion to dismiss. ECF No. 15. With leave from the Court, Bailey filed a
sur-reply. ECF No. 21. The matter is ripe for adjudication.
Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, the complaint must allege enough facts to
“raise a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555
(2007). The alleged facts must “state a claim to relief that is plausible on its face.” Id. at 570.
Upon reviewing a motion to dismiss, the Court shall take the pleadings as true and construe them
“liberally in favor of the party opposing the motion to dismiss.” Scott v. Ambani, 577 F.3d 642,
646 (6th Cir. 2009). Claims set forth in a complaint must be plausible, rather than conceivable.
Twombly, 550 U.S. at 570. “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (citing Fed. R. Civ.
Pro. 8(a)(2)). A court may dismiss a claim if the court finds on the face of the pleading that
“there is an insurmountable bar to relief indicating that the plaintiff does not have a claim.”
Ashiegbu v. Purviance, 76 F. Supp. 2d 824, 828 (S.D. Ohio 1998), aff’d 194 F.3d 1311 (6th Cir.
1999), cert. denied, 529 U.S. 1001 (2000).
In addition to reviewing the claims set forth in the complaint, a court may also consider
“the Complaint and any exhibits attached thereto, public records, items appearing in the record of
the case and exhibits attached to 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). A court may also consider “documents
incorporated into the complaint by reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Major Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also F.R.E.
Rule 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.”).
Bailey’s sole claim against Defendants is for age discrimination in violation of the
ADEA.1 Under federal law, an ADEA claim can only be brought against an employer. The
ADEA, 29 U.S.C. § 621, et seq., makes it unlawful for an employer to discriminate against any
employee because of that individual’s age. 29 U.S.C. § 623(a). Defendants challenge Bailey’s
ability to bring action against them because they do not meet the ADEA’s definition of
employer. The ADEA defines employer as:
a person engaged in an industry affecting commerce who has
twenty or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year:
Provided, That prior to June 30, 1968, employers having fewer
than fifty employees shall not be considered employers. The term
also means (1) any agent of such a person, and (2) a State or
political subdivision of a State and any agency or instrumentality
of a State or a political subdivision of a State, and any interstate
agency, but such term does not include the United States, or a
corporation wholly owned by the Government of the United States.
29 U.S.C. § 630(b). In their Motion to Dismiss, Defendants assert that (1) an individual cannot
be held personally liable under the ADEA, and (2) East Liverpool City Hospital, East Liverpool
City Hospital, Growing for Tomorrow and Today, and River Valley Health Partners are not
Bailey’s employer. ECF No. 11 PageID #: 53-56.
A. Cheryl Dieringer
Defendant Dieringer (“Dieringer”), as alleged in the Complaint by Bailey, was the
clinical director of the obstetrics department at East Liverpool City Hospital. ECF No. 1 PageID
Bailey makes passing reference to Defendants being liable for age discrimination under Ohio
common law. ECF No. 1 PageID #: 5 at ¶ 32. All Ohio state-law age discrimination claims
must be brought pursuant to R.C. § 4112.02. See Meyer v. United Parcel Service, Inc., 909
N.E.2d 106, 115 (Ohio 2009) (recognizing that there is no common-law claim for age
discrimination in Ohio); Leininger v. Pioneer Nat’l. Latex, 875 N.E.2d 36, 41 n.3 (Ohio 2007)
(same); Hoops v. United Tel. Co. of Ohio, 553 N.E.2d 252, 256 (Ohio 1990) (same).
#: 3 at ¶ 13. Bailey alleges that “Dierigner [sic] subjected the plaintiff to an adverse employment
action when the defendant and East Liverpool City Hospital Defendants trained an employee
under the age of forty (40) instead of the plaintiff . . . .” ECF No. 1 PageID #: 4-5 at ¶ 29.
Defendants argue the Sixth Circuit has already determined that an individual cannot be
held personally liable under the ADEA. See Wathen v. Gen. Elec. Co., 115 F. 3d 400 (6th Cir
1997). In Wathen, the plaintiff filed suit against her employer and three individuals, alleging
sexual harassment under Title VII. The Sixth Circuit stated that an individual
employee/supervisor, who does not otherwise qualify as an “employer,” cannot be held
personally liable under Title VII. Id. at 405. Although Wathen involved discrimination under
Title VII and not the ADEA, the Sixth Circuit observed that the “employer” definitions of each
statute can be used interchangeably:
The issue of an employee/supervisor’s individual liability has been
raised not only within the context of Title VII but also in its close
counterparts, the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621–634, and the American with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12117. The
liability schemes under Title VII, the ADEA, and the ADA are
essentially the same in aspects relevant to this issue; they limit
liability to the employer and use the term “agent” in defining
employer. See 42 U.S.C. §§ 2000e–5(b), 2000e(b) (Title VII); 29
U.S.C. §§ 626(b), 630(b) (ADEA); 42 U.S.C. §§ 12112(a),
12111(5)(A) (ADA). Because Title VII, the ADEA, and the ADA
define “employer” essentially the same way, an analysis based on
Title VII, the ADEA, and the ADA case law is appropriate. See
E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279–
80 (7th Cir. 1995). Hence, we refer to and rely on case law under
Title VII, ADEA, and the ADA throughout our opinion.
Wathen, 115 F.3d at 404 n.6. The Sixth Circuit agreed with the conclusion of the Second Circuit
that it is “‘inconceivable’ that a Congress concerned with protecting small employers would
simultaneously allow civil liability to run against individual employees.” Id. at 406 (quoting
Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995)).
Bailey argues that the Sixth Circuit has not considered the issue of intentional or willful,
wanton, malicious age discrimination by an individual agent and, as such, should adopt sister
circuits examining the liability of an individual agent. ECF No. 14 PageID #: 95. Bailey relies
on two unreported cases to convince the Court that an individual should be held personally liable
under the ADEA, both of which are from outside the Sixth Circuit and precede Wathen. ECF
No. 14 PageID #: 95-98. Although the Sixth Circuit has not considered the issue of intentional
or willful, wanton, malicious age discrimination, it has unequivocally stated that a supervisor
cannot be held individually liable under the ADEA. See Wathen, 115 F. 3d 400; see also
Williams v. Michigan, 52 F. App’x. 723, 724 (6th Cir. 2002) (holding that individual supervisors
cannot be liable for employment discrimination under the ADEA); Jones v. Memphis Bd. of
Edu., 1998 WL 898829, *1 (6th Cir. Dec. 16, 1998) (same). The Court is bound to follow
Wathen. Dieringer cannot be held individually liable under the ADEA.
The Court grants the motion to dismiss as to Cheryl Dieringer. Bailey’s claim against
Deringer is dismissed with prejudice.
B. East Liverpool City Hospital and East Liverpool City Hospital, Growing for
Tomorrow and Today
In the Complaint, Bailey names East Liverpool City Hospital and East Liverpool City
Hospital, Growing for Tomorrow and Today as two of her employers since April 2010. ECF No.
1 PageID #: 2-3 at ¶ 11. Defendants argue that East Liverpool City Hospital and East Liverpool
City Hospital, Growing for Tomorrow and Today (“Trade Name Defendants”) are trade names
registered with the State of Ohio and do not employ any employees, including Bailey. ECF No.
11 PageID #: 56.
Any business entity planning to transact business within Ohio, using a name other than
their personal name, must register with the Ohio Secretary of State’s office. R.C. § 1701.04(A).
East Liverpool City Hospital and East Liverpool City Hospital, Growing for Tomorrow and
Today are registered with the Ohio Secretary of State as trade names of The City Hospital
Association. See Ohio Secretary of State, http://www2.sos.state.oh.us/pls/bsqry/ f?p=100:1 (last
visited August 31, 2015). The City Hospital Association has admitted to employing Bailey and
does not join the instant motion to dismiss. ECF No. 10 PageID #: 46 at ¶ 10. The suit against
The City Hospital Association’s trade names is, therefore, duplicative. See Rachells v. Cingular
Wireless, 483 F. Supp. 2d 583, 587 (N.D. Ohio 2007) (holding that the court “lacks jurisdiction
to entertain a suit against trade names,” but granting leave to amend the complaint to substitute
the proper legal entity as the defendant to the lawsuit).
Bailey maintains that the Trade Name Defendants are proper parties to her lawsuit and
relies on Family Medicine Foundation v. Bright, 772 N.E.2d 1177 (Ohio 2002) for support. ECF
No. 14 PageID #: 99. In Bright, the plaintiff sued a medical clinic operating under a fictitious
name. The Supreme Court of Ohio reviewed the certified question, “[d]oes R.C. § 1329.10(C)
permit a plaintiff to commence or maintain an action solely against a fictitious names, or must
the action be commenced and/or maintained against the user of the fictitious name?” Bright, 772
N.E.2d at 1178 (emphasis added). The Bright Court held that, pursuant to § 1329.10(C), a
plaintiff may commence or maintain an action “against a party named only by its fictitious
name.” Id. at 1180 (emphasis added).
This case is distinguishable from Bright. Appellants in Bright only named the Practice
Center in the complaint because they were unable to determine the legal entity behind the
fictitious name. Bright, 772 N.E.2d at 1179. In this case, the two Trade Name Defendants are
registered with the State of Ohio, and their holder, The City Hospital Association, is readily
ascertainable and part of the lawsuit. Bailey could have reasonably determined The City
Hospital Association is the legal entity behind the trade names. Bailey’s failure to utilize public
records does not permit her to maintain an action against the Trade Name Defendants. Rachells,
483 F. Supp. 2d at 587.
The Court grants the motion to dismiss as to East Liverpool City Hospital and East
Liverpool City Hospital, Growing for Tomorrow and Today. Bailey’s claim against East
Liverpool City Hospital and East Liverpool City Hospital, Growing for Tomorrow and Today is
dismissed with prejudice.
C. River Valley Health Partners
In the Complaint, Bailey names River Valley Health Partners (“RVHP”) as one of her
employers since April 2010. ECF No. 1 PageID #: 2-3 at ¶ 11. Defendants argue that RVHP is a
holding company that never employed Bailey or anyone else. ECF No. 11 PageID #: 56.
In order to hold RVHP liable under the ADEA, Bailey must show that RVHP was her
employer within the meaning of the statute. Defendants argue that since they have admitted The
City Hospital Association is Bailey’s employer, RVHP cannot also be Bailey’s employer. ECF
No. 11 PageID #: 53-54. “Although a direct employment relationship provides the usual basis
for liability under the ADEA . . . , courts have fashioned various doctrines by which a defendant
that does not directly employ a plaintiff may still be considered an ‘employer’” under certain
circumstances. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir.
1997). One such doctrine is the “single employer” or “integrated enterprise” doctrine. Id. In the
[u]nder the “single employer” or “integrated enterprise” doctrine,
two companies may be considered so interrelated that they
constitute a single employer subject to liability under the ADEA
and/or the ADA. In determining whether to treat two entities as a
single employer, courts examine the following four factors: (1)
interrelation of operations, i.e., common offices, common record
keeping, shared bank accounts and equipment; (2) common
management, common directors and boards; (3) centralized control
of labor relations and personnel; and (4) common ownership and
Swallows, 128 F. 2d at 993 (internal citations omitted).
In RVHP’s most recent filings on the Ohio Secretary of State’s website, it amended its
articles of incorporation stating that its purpose, among others, was to “[p]romote the
advancement of and further the aims and purposes of The City Hospital Association, by without
limitation, the receipt and disbursement of financial resources for the programs of The City
Hospital Association.” Ohio Secretary of State, http://www2.sos.state.oh.us/reports/rwservlet?
imgc&Din=201203201196 (last visited August 31, 2015). RVHP’s President and CEO also
serve as the statutory agent for both RVHP and The City Hospital Association. The public
filings for RVHP and The City Hospital Association, therefore, plausibly suggest that the two
entities share interrelation of operations, common management, and common ownership and
financial control. Swallows, 128 F. 2d at 993. This is sufficient to survive a 12(b)(6) motion.
Twombly, 550 U.S. at 570 (requiring that a plaintiff allege “enough facts to state a claim to relief
that is plausible on its face”).
At this time, Bailey has plausibly suggested that RVHP may be considered her employer
under the “single employer” analysis set forth in Swallows. In reviewing a motion to dismiss, the
Court must accept the complaint’s factual allegations as true, finding that the moving parties are
entitled to judgment only if the Plaintiffs “can prove no set of facts . . . that would entitle [them]
to relief.” Twombly, 550 U.S. at 557. Therefore, the Court denies, without prejudice, the motion
to dismiss Bailey’s claim against River Valley Health Partners.
For the reasons set forth above, the Court grants in part and denies in part the
Defendants’ Motion to Dismiss. ECF No. 11. The Court grants the motion to dismiss as to
Cheryl Dieringer, East Liverpool City Hospital, and East Liverpool City Hospital, Growing for
Tomorrow and Today with prejudice. The Court denies the motion to dismiss, without
prejudice, as to River Valley Health Partners.
IT IS SO ORDERED
August 31, 2015
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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