Anders v. Dolgencorp, LLC et al
Filing
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Memorandum Opinion and Order: Defendants' motion to dismiss Counts 2, 3 and 4 of the Complaint is granted. Further, defendants' motion to strike plaintiff's request for compensatory damages, punitive damages, lost earning potential, and a jury trial is granted. (Related Doc # 8 ). Judge Sara Lioi on 12/19/2011. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JUNE G. ANDERS,
PLAINTIFF,
vs.
DOLGENCORP, LLC, et al.,
DEFENDANTS.
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CASE NO. 5:11 CV 2098
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court is defendants’ motion to dismiss and motion to strike (Doc. No.
8), seeking dismissal of Count 2 (intentional infliction of emotional distress), Count 3 (public
policy violation), and Count 4 (punitive damages) of plaintiff’s complaint, and seeking to strike
plaintiff’s request for compensatory and punitive damages, for “lost earning potential,” and for a
jury trial.
The motion was filed on November 4, 2011. Under Local Rule 7.1(d), any
memorandum in opposition was due by no later than December 5, 2011. No such opposition has
been filed. Therefore, the Court considers the motion unopposed.
For the reasons set forth herein, the motion is GRANTED.
BACKGROUND
On October 4, 2011, plaintiff filed a complaint based on diversity jurisdiction.1
She alleges that she was born on June 5, 1946, and, at all relevant times, was within the class
protected under O.R.C. Chapter 4112. (Compl. ¶¶ 2, 4.)
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The complaint mistakenly cites 28 U.S.C. § 1331, instead of § 1332. However, it clearly alleges that it is “a civil
action between citizens of different states[]” (Compl. Prefatory ¶ and ¶ 1), with one defendant being a Kentucky
Limited Liability Company, the other defendant being a Tennessee Limited Liability Company, both defendants
having their principal place of business in Tennessee and plaintiff being a citizen of Ohio.
Plaintiff was employed by the defendants as an Assistant Manager of the Dollar
General Store in Bolivar, Ohio, from approximately May 2007 until her termination on or about
October 8, 2010. (Comp. ¶ 5.)
Defendants had a written policy that included a no tolerance policy for all
employees doing any work off the clock. Furthermore, employees were told by defendants that
breaks and lunch periods were to be uninterrupted periods of time and were instructed not to
work off the clock during those times. (Compl. ¶ 6.) However, Scott Fritz, the Store Manager,
knew that employees worked off the clock, encouraged them to do so, and never reprimanded
anyone for working off the clock. (Id. ¶¶ 7, 8.)
On or about September 18 and 19, 2010, while Scott Fritz was on vacation,
plaintiff worked off the clock to get stock work completed by the deadline and to retrieve bags
for a new employee. (Compl. ¶ 10.) When Fritz returned from vacation, he reviewed videotapes
of the activity in the store during his absence, and saw that plaintiff had worked off the clock on
the two days he was gone; Fritz reported this to District Manager, Jan Urbas. (Id. ¶ 11.) On
October 8, 2010, Urbas, based on her investigation of Mr. Fritz’s report that plaintiff worked off
the clock in September 2010, terminated plaintiff, without giving plaintiff any type of
disciplinary warning. (Id. ¶ 12.)
Plaintiff alleges that her termination was unlawful and that she was replaced by
someone substantially younger. (Compl. ¶¶ 14, 15.)
In Count One, plaintiff alleges a state law claim of age discrimination under
O.R.C. §§ 4112.14 and 4112.99. She seeks “back and front pay and compensatory,
reinstatement, punitive damages, plus reasonable attorneys’ fees and costs.” (Compl. ¶ 21.)
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In Count Two, incorporating all the previous paragraphs of her complaint,
including the allegations of age discrimination, plaintiff alleges a public policy violation under
Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St. 3d 228 (1990) and seeks
“back pay and front pay, compensatory and punitive damages, plus reasonable attorneys’ fees
and costs.” (Comp. ¶¶ 23, 24.)
In Count Three, plaintiff alleges a claim of intentional infliction of emotional
distress. (Compl. ¶¶ 26-30.)
Finally, in Count Four, plaintiff alleges a claim for punitive damages because
defendants’ conduct was “conscious, deliberate, intentional, and/or reckless in nature[]” and
“evidence[d] a conscious disregard for the rights of other persons that has a great probability of
causing substantial harm.” (Compl. ¶¶ 32, 33.)
Plaintiff seeks judgment “in an amount which exceeds” $25,000 and:
(1)
(2)
(3)
(4)
(5)
(6)
An award for lost wages, benefits and other compensation;
An award of front pay for lost future wages, benefits and other
compensation, as well as for lost earning potential, from the date of
judgment forward;
An award for costs and disbursements incurred in connection with this
action including attorneys’ fees and cost;
An award of punitive damages to deter Defendants from engaging in
discriminatory conduct in the future;
An award of pre-judgment and post-judgment interest as provided by law;
and,
Such other relief as may be deemed just and equitable by this Court.
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DISCUSSION
A.
Motion to Dismiss
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. 44, 47 (1957). Although this pleading standard does not require great detail, the factual
allegations in the complaint “must be enough to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing authorities). In other
words, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to
relief.” Id. at 556, n.3 (criticizing the Twombly dissent’s assertion that the pleading standard of
Rule 8 “does not require, or even invite, the pleading of facts”).
“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,
129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Rule 8 does not “unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 1950. “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.
1.
Public Policy Claim for Wrongful Discharge
Plaintiff’s complaint asserts that defendants violated public policy by engaging in
conduct that violated O.R.C. §§ 4112.14 and 4112.99. It is well-established, however, that an
adequate statutory remedy already exists to protect Ohio’s public policy against age
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discrimination. See Leininger v. Pioneer Nat’l Latex, 115 Ohio St. 3d 311, 319 (2007) (holding
that “[a] common-law tort claim for wrongful discharge based on Ohio’s public policy against
age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete
relief for a statutory claim for age discrimination.”).
Therefore, plaintiff’s claim in Count Two fails as a matter of law and defendants
are entitled to dismissal of that claim.
2.
Intentional Infliction of Emotional Distress
To establish a claim of intentional infliction of emotional distress (“IIED”), a
plaintiff must prove: “(1) the defendant intended to cause emotional distress or knew or should
have known that its conduct would result in serious emotional distress to the plaintiff; (2)
defendant’s conduct was outrageous and extreme and beyond all possible bounds of decency and
was such that it can be considered as utterly intolerable in a civilized community; (3) defendant’s
conduct was the proximate cause of plaintiff’s psychic injury; and (4) plaintiff’s emotional
distress was serious and of such a nature that no reasonable person could be expected to endure
it.” Kerr v. Hurd, 694 F. Supp. 2d 817, 846 (S.D. Ohio 2010) (quoting Ekunsumi v. Cincinnati
Restoration, Inc., 120 Ohio App.3d 557, 698 N.E.2d 503, 506 (1997)).
The allegations of Count Three of the complaint exactly parrot the bare elements
of a claim of IIED, as follows:
26.
27.
28.
29.
30.
Defendants’ intended to cause emotional distress to Plaintiff.
Defendants’ conduct was so extreme and outrageous as to go beyond the
bounds of decency, as such conduct is considered intolerable in a civilized
society.
Defendants proximately caused Plaintiff’s emotional distress.
The mental anguish suffered by Plaintiff is so serious and of a nature that
no reasonable person can be expected to endure it.
As a direct and proximate result of the Defendants’ behavior and
misconduct, Plaintiff suffered emotional harms.
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(Compl. ¶¶ 26-30.) This is precisely the type of pleading that Twombly and Iqbal addressed as
insufficient. This complaint provides no additional facts to support the IIED claim. Under Ohio
law, a plaintiff may establish the tort of IIED only if “the conduct has been 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.” Yeager v. Local Union
20, 6 Ohio St. 3d 369, 375 (1983) (overruled on other grounds). “[A]n 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, 375-76 (6th Cir. 1999).
Defendants are entitled to dismissal of the claim in Count Three.
B.
Motion to Strike
The remedies available to a plaintiff for alleged age discrimination under O.R.C.
§ 4112.14 are expressly delineated by the statute: “reimbursement to the [...] employee for the
costs, including reasonable attorney’s fees, of the action, or to reinstate the employee in the
employee’s former position with compensation for lost wages and any lost fringe benefits from
the date of the illegal discharge and to reimburse the employee for the costs, including
reasonable attorney’s fees, of the action.” O.R.C. § 4112.14(B). Although plaintiff also alleges
age discrimination under O.R.C. § 4112.99, which provides that “whoever violates this chapter is
subject to a civil action for damages, injunctive relief, or any other appropriate relief[,]” the Ohio
Supreme Court has held that “an age-discrimination claim brought under R.C. 4112.99 is subject
to the substantive provisions of R.C. 4112.02 and 4112.14.” Meyer v. United Parcel Service,
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Inc., 122 Ohio St. 3d 104, 112 (2009) (rejecting a broader reading of Leininger, supra). “To
allow the general provisions of R.C. 4112.99 to prevail over the specific provisions of R.C.
4112.02(N) and 4112.14 would ignore the relevant statutes and would turn the framework of
R.C. Chapter 4112 relating to age-discrimination claims on its head.” Id. Therefore, under the
language of § 4112.14, plaintiff is not entitled to seek compensatory or punitive damages or any
“lost earning potential.”
Similarly, § 4112.14 does not create a right to trial by jury. Hoops v. United
Telephone Co. of Ohio, 50 Ohio St. 3d 97, 102 (1990) (construing former O.R.C. § 4101.17, now
O.R.C. § 4112.14, and holding “[b]ecause actions for employment discrimination, such as that
provided by R.C. [4112.14], did not exist at common law, there is no right to a jury trial under
R.C. [4112.14].”). Under Ohio Civ. R. 39(A)(2), the Court may, upon motion or its own
initiative, strike a jury demand if it finds “that a right of trial by jury of some or all of [the] issues
does not exist.” See also Fed. R. Civ. P. 39(a)(2).
Accordingly, defendants’ motion to strike plaintiff’s request for compensatory
damages, punitive damages, “lost earning potential,” and for a jury trial is GRANTED
CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss Counts 2, 3 and 4
of the Complaint is GRANTED. Further, defendants’ motion to strike plaintiff’s request for
compensatory damages, punitive damages, lost earning potential, and a jury trial is GRANTED.
IT IS SO ORDERED.
Dated: December 19, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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