Jones, et al v. Natural Essentials, Inc.

Filing 18

Memorandum Opinion and Order: The Court concludes that plaintiffs' request for leave to amend is not well-taken, and is denied. The Court also denies plaintiffs' request to amend the dismissal of counts I and II to dismissal without prejudice. Plaintiffs' motion for reconsideration is granted. For all of the foregoing reasons, having reconsidered in light of plaintiffs' motion, the Court adheres to its original decision. (Related Doc. No. #15 ). Judge Sara Lioi on 12/4/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN JONES, et al.,
PLAINTIFFS,

vs.

NATURAL ESSENTIALS, INC.,
DEFENDANT.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 5:16-cv-93
JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

This matter is before the Court on the motion of plaintiffs Kevin Jones (“K.
Jones”), Teresa Jones (“T. Jones”), and Rob Lovejoy (“Lovejoy”) (collectively,
“plaintiffs”) for reconsideration of the Court’s memorandum opinion and judgment entry
(Doc. Nos. 13 [“MO”] and 14 [“JE”]). (Doc. No. 15 [“Mot.”].) Defendant Natural
Essentials, Inc. (“defendant”) opposed the motion (Doc. No. 16 [“Opp’n”]), and plaintiffs
filed a reply (Doc. No. 17 [“Reply”]).
I. BACKGROUND
The factual background of this case is detailed in the Court’s memorandum
opinion from which plaintiffs seek reconsideration. (See MO at 215-16.1) Briefly,
plaintiffs were employed by defendant. T. Jones fell on September 15, 2013 during a
work break and injured her right shoulder. She immediately advised her supervisor of her
fall, finished her shift, and then sought medical treatment. Defendant’s owner terminated

All page number references are to the page identification numbers generated by the Court’s electronic
filing system.
1

T. Jones and K. Jones on September 16, 2013, claiming that he had already decided to
terminate them on September 14, 2013. On September 17, 2017, T. Jones filed a workers’
compensation claim. Lovejoy was terminated on September 17, 2017, allegedly for
advising T. Jones and K. Jones to sue defendant.
On these alleged facts, plaintiffs assert two federal claims (counts I and II) for
violation of Titles I, III, and V of the Americans with Disabilities Act (“ADA”) and three
state law claims (counts III, IV, and V). Defendant moved to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The Court granted the
motion as to both federal claims, and declined to exercise supplemental jurisdiction over
plaintiffs’ state law claims, which were dismissed without prejudice.
II. DISCUSSION
A. Standard of Review
As plaintiffs note at the outset, the federal rules of civil procedure do not provide
for motions for reconsideration. Such motions are typically treated as a motion to alter or
amend the judgment under Fed. R. Civ. P. 59(e). McDowell v. Dynamics Corp. of Am.,
931 F.2d 380, 382 (6th Cir. 1991) (citing Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.
1979)). The purpose of Rule 59(e), however, is not to provide an unhappy litigant with an
opportunity to relitigate issues already considered and rejected by the Court. Morgantown
Mach. & Hydraulics of Ohio, Inc. v. Am. Piping Prods., Inc., No. 5:15-CV-1310, 2016
WL 3555431, at *3 (N.D. Ohio June 30, 2016) (citation omitted). In other words, a
motion for reconsideration is not a substitute for appeal. See CitiMortgage, Inc. v.
Nyamusevya, No. 2:13-CV-00680, 2015 WL 1000444, at *4 (S.D. Ohio Mar. 5, 2015)
(citing Gore v. AT & T Corp., No. 2:09–CV–854, 2010 WL 3655994, at *1 (S.D. Ohio

2

Sept. 14, 2010) (“Motions for reconsideration should not be used as a substitute for
appeal nor should they be used as a vehicle for mere disagreement with a district court’s
opinion.”)). Generally, only three situations justify a district court in altering or amending
its judgment: (1) to accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct a clear error of law or to
prevent a manifest injustice. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F.
App’x 949, 959 (6th Cir. 2004) (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965
(N.D. Ohio 1998)).
B. Analysis
Plaintiffs do not contend that there has been an intervening change in law or new
evidence. Rather, plaintiffs argue that the Court committed an error of law. An error
occurs where the Court exhibits a “wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Huff v. FirstEnergy Corp., No. 5:12CV2583, 2014 WL
2441768, at *2 (N.D. Ohio May 29, 2014) (internal quotation marks and citation
omitted); Jackson v. Ford Motor Co., No. 15-1180, 2016 WL 4533028, at *1 (W.D.
Tenn. Mar. 21, 2016) (“A ‘clear error of law’ occurs where the original ruling overlooked
or disregarded some argument or controlling authority or where the moving party
successfully points out a manifest error[.]”) (some internal quotation marks omitted)
(quoting United States v. Ladeau, No. 3:10-CR-00242-1, 2012 WL 5838125, at *2 (M.D.
Tenn. Nov. 15, 2012) (further citation omitted)).

3

Plaintiffs maintain that the Court erred in ruling that defendant’s motion to
dismiss should be granted because: (1) T. Jones failed to exhaust her administrative
remedies; and (2) plaintiffs failed to allege a prima facie case of discrimination under the
ADA.
1. Failure to timely file an EEOC charge
The timely filing of an EEOC charge of discrimination, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling. There is no question that
plaintiffs failed to file an ADA charge of discrimination with the EEOC within the
statutory time period.2 The alleged discrimination took place on September 16, 2013, and
T. Jones did not file an EEOC charge until March 22, 2016. (MO at 220-21.) In granting
defendant’s motion to dismiss, the Court found that plaintiffs did not allege any basis for
estoppel or equitable tolling (or provide any explanation for the late filing of the EEOC
charge) and, in seeking to dismiss plaintiffs’ complaint, defendant was clearly not
waiving the statutory time period for filing an EEOC charge. (MO at 222-23.) The Court
granted defendant’s motion to dismiss not because the Court lacked jurisdiction, but
because plaintiffs failed to timely file an EEOC charge which, absent waiver, estoppel, or

2

The ADA incorporates the remedies and procedures applicable to employment discrimination under Title
VII. The Sixth Circuit has explained Title VII’s dual statute of limitations as follows:
Usually, if the alleged discrimination occurred more than 180 [days] prior to the
plaintiff’s filing of an EEOC charge, claims implicating these actions are barred.
However, if the alleged unlawful practice occurs in a “deferral state,” in this case Ohio,
which has enacted its own laws prohibiting discrimination in employment, the plaintiff
must filed [sic] suit within 300 days of the alleged discriminatory act.
Longino v. City of Cincinnati, No. 1:12-CV-424, 2013 WL 1412192, at *3 (S.D. Ohio Apr. 8, 2013)
(quoting Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 407 (6th Cir. 1999) (citing
42 U.S.C. § 2000e–5(e))). Ohio is a deferral state and defendant acknowledges that plaintiffs had 300 days
under the statute to file an EEOC charge. (See Doc. No. 6-1 at 58-59.)

4

tolling, is a necessary prerequisite to filing a discrimination claim in federal court. (MO at
219-20.)
Waiver
In opposing defendant’s motion to dismiss, plaintiffs argued that the Court has the
power to waive the statutory time period for filing an EEOC charge. The Court disagreed,
concluding that under the Supreme Court case of Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982), the Court did not have the power to
set aside or waive the statutory requirements for filing an EEOC charge (as opposed to
permitting plaintiff to cure the failure to have a right-to-sue letter in hand when the
complaint is filed). (MO at 222-23.) Thus, the Court granted defendant’s motion to
dismiss plaintiffs’ ADA claims. See Evans v. Grosse Pointe Pub. Sch. Sys., No. 0614826, 2007 WL 614188, at *1 (E.D. Mich. Feb. 23, 2007) (time period for filing a
charge of discrimination has expired and plaintiff is thus unable to exhaust those
remedies and cannot obtain a right to sue letter necessary to bring suit in federal court)
(citations omitted).
In seeking reconsideration, plaintiffs again argue that the Court has the power to
waive the statutory time period for filing an EEOC charge, and the Court erred in
concluding that it does not. As an initial matter, this is the same argument that plaintiffs
made in opposing defendant’s motion to dismiss, and which the Court has already
considered. (See Doc. No. 11 at 179-82.) Moreover, plaintiffs do not address cases cited
by the Court in support of its conclusion that while under Zipes the statutory time period
can be waived, it cannot be waived by the Court. (See MO at 222-23.)

5

The purpose of a Rule 59 motion is not to relitigate arguments and issues already
considered by the Court, and is not a substitute for appeal. Morgantown Mach. &
Hydraulics of Ohio, 2016 WL 3555431, at *3; CitiMortgage, 2015 WL 1000444, at *4.
By simply reasserting the same generic waiver arguments that were asserted in opposition
to defendant’s motion to dismiss, plaintiffs have not established that the Court committed
a clear error of law in concluding that the statutory time period for filing an EEOC charge
of ADA discrimination cannot be waived by this Court.
Equitable tolling

In granting defendant’s motion to dismiss, the Court considered whether tolling
may be appropriate in light of plaintiffs’ state court case filed in Portage County even
though there were no allegations in the complaint that even inferentially supported
estoppel or equitable tolling of the statutory time period for filing an EEOC charge. (MO
at 222 n.6.3) After applying the Sixth Circuit’s five-factor analysis, however, the Court
concluded that equitable tolling of the time to file an EEOC charge was not appropriate in
this case.
In seeking reconsideration, plaintiffs argue that the EEOC statutory time period
should be equitably tolled because plaintiffs were diligent in that they filed their state
court action under Ohio’s statute within six months of termination and, if the Court
proceeds on the merits of this case, defendant will not be prejudiced. Focusing on those
“The Sixth Circuit has identified five factors for courts to consider when determining whether equitable
tolling is appropriate: (1) lack of notice of the filing requirement; (2) lack of constructive knowledge of the
filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5)
the plaintiff’s reasonableness in remaining ignorant of the particular legal requirement.” Black v. Columbus
Pub. Sch., 211 F. Supp. 2d 975, 982 (S.D. Ohio 2002), aff’d, 79 F. App’x 735 (6th Cir. 2003) (citing Truitt
v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998) (citing Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.
1988))). “[C]ourts weigh the factors on a flexible, case-by-case basis. Id. (citations omitted). “[The Sixth]
[C]ircuit has repeatedly cautioned that equitable tolling relief should be granted only sparingly.” Amini v.
Oberlin Coll., 259 F.3d 493, 500 (6th Cir. 2001).
3

6

two factors, plaintiffs contend that it would be manifestly unjust and inequitable for the
Court not to decide this case on the merits. (Mot. at 239-40.)
But plaintiffs’ argument ignores the other three factors (lack of notice of filing
requirement, lack of constructive knowledge of filing requirement, and reasonableness of
remaining ignorant of the filing requirement)—all of which weigh against plaintiffs.
Likewise, plaintiffs fail to address the Court’s analysis of these factors. Moreover,
plaintiffs were represented by counsel in their state court action wherein they asserted a
state law claim for disability discrimination (among others),4 and cannot credibly
maintain that they lacked constructive knowledge of the filing requirement or that it was
reasonable for them to be ignorant of that requirement. See Clark v. Nissan Motor Mfg.
Corp. U.S.A., No. 97-5956, 1998 WL 786892, at *3 (6th Cir. Oct. 26, 1998) (citing
Jackson v. Richards Med. Co., 961 F.2d 575, 579 (6th Cir. 1992) (adopting the view that
employee who has retained counsel has constructive knowledge of filing requirements)).
In light of the foregoing, and the Sixth Circuit’s admonition that equitable tolling
of a statutory time period for filing an EEOC charge should be “sparingly granted ,”
plaintiffs have failed to demonstrate that the Court erred in ruling that plaintiffs are not
entitled to equitable tolling of the statutory period for filing an EEOC charge. See Reed v.
ADM/ARTCO, 57 F. App’x 682, 683 (6th Cir. 2003) (citing Graham-Humphreys v.
Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)); Sherman v.
Optical Imaging Sys., Inc., 843 F. Supp. 1168, 1180 (E.D. Mich. 1994).

4

The Court may take judicial notice of proceedings in other courts. See Buck v. Thomas M. Cooley Law
Sch., 597 F.3d 812, 816 (6th Cir. 2010) (citation omitted). (See Mot. at 239, citing Teresa Jones, et al. v.
Natural Essentials, Inc., Case No. 2014 CV 00215.) Plaintiffs’ state law complaint was filed on March 14,
2014. (Doc. No. 11, at 175 n. 2.)

7

2. Prima facie case
In granting defendant’s motion, the Court found that aside from the issue of
failure to timely file an EEOC charge, the complaint failed to allege a prima facie case of
discrimination. (MO at 224.5) Plaintiffs contend on reconsideration that the Court erred in
finding that the complaint did not allege any facts regarding the fifth element of a prima
facie case—that defendant replaced T. Jones after her termination or her job remained
open. (Mot. at 242-43.) After extensively revisiting the standard of review for a motion to
dismiss, plaintiffs argue that it would have been reasonable for the Court to infer that
defendant replaced T. Jones’ position as a packer. (Mot. at 244.) Plaintiffs also argue that
some courts in the Sixth Circuit do not require the fifth element. (See MO at 224; Mot. at
245.) Plaintiffs also contend that the Court erred with respect to the fourth element of a
prima facie case by concluding that the factual allegations in the complaint do not support
a reasonable inference that defendant knew or had reason to know of T. Jones’ disability.
(MO at 225; Mot. at 246-47.)
Even assuming that plaintiffs’ argument regarding the fifth element of a prima
facie case is correct, plaintiffs do not prevail on their reconsideration argument with
respect to element four—that defendant knew or had reason to know of T. Jones’
disability. Plaintiffs merely reassert the same argument regarding this issue that they

5

In order to establish a prima facie case of discrimination, a plaintiff must show that:
1) he or she is disabled, 2) he or she is otherwise qualified for the position, with or
without reasonable accommodation, 3) he or she suffered an adverse employment
decision, 4) the employer knew or had reason to know of the plaintiff’s disability, and 5)
the position remained open while the employer sought other applicants or the disabled
individual was replaced.

(MO at 224 (quoting Ferrari v. Ford Motor Co., 826 F.3d 885, 891-92 (6th Cir. 2016) (further citation
omitted)).)

8

made in opposition to defendant’s motion to dismiss, and which has already been
considered by the Court. They again argue that both T. Jones’ supervisor and defendant’s
owner knew she was injured due to a fall (although plaintiffs alleged that T. Jones’
supervisor “was not truthful about the extent of Ms. Jones’ injuries”), that defendant was
aware T. Jones was contemplating filing a workers’ compensation claim and lawsuit
against defendant for her workplace injuries and, that “‘[t]he sole reason for Ms. Jones’
termination by [defendant] was her pursuant [sic] of her lawful remedies in connection
with the Workplace Injuries, including pursuit of a workers’ compensation claim.’” (Mot.
at 246-47, citing the complaint and quoting ¶ 62.)
The fourth element of a prima case of disability discrimination may be established
if the alleged facts, taken as true, show that defendant had enough information about T.
Jones’ condition to conclude that she was disabled. (MO at 225.) The Court found that
even drawing reasonable inferences in plaintiffs’ favor (defendant knew that T. Jones’
fell and was injured but returned to work and completed her shift, and that she intended
to file a workers’ compensation claim and law suit regarding her injury), it cannot be
reasonably inferred from those allegations that defendant had enough information
regarding T. Jones’ injury to conclude that she was disabled. See Matuska v. Hinckley
Twp., 56 F. Supp. 2d 906, 917 (N.D. Ohio 1999) (defendant’s knowledge that plaintiff
had suffered an injury on the job and was depressed does not amount to knowledge of the
resulting limitation and, thus, defendant did not know or have reason to know of
plaintiff’s disabilities). Nor are there any allegations in the complaint from which the
Court can reasonably infer that defendant regarded T. Jones as disabled because

9

defendant believed that she sustained an injury that substantially limits one or more major
life activities. See Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002).
Thus, plaintiffs’ arguments on reconsideration do not establish that the Court
erred in concluding that plaintiffs failed to allege facts from which the fourth element of a
prima facie case of disability discrimination could be reasonably inferred. Plaintiffs’ mere
disagreement with the Court’s conclusion does not establish that the Court erred as a
matter of law. See Gore, 2010 WL 3655994, at *1.
3. Alternative requests
Plaintiffs alternatively move the Court for leave to file an amended complaint or,
alternatively, to change the dismissal of counts I and II with prejudice to dismissal
without prejudice.
Amendment not warranted
“A claimant who seeks to amend a complaint after losing the case must provide a
compelling explanation to the district court for granting the motion.” Leisure Caviar,
LLC v. Unites States Fish & Wildlife Serv., 616 F.3d 612, 617 (6th Cir. 2010) (emphasis
in original). “When a party seeks to amend a complaint after an adverse judgment, it thus
must shoulder a heavier burden. Instead of meeting only the modest requirements of Rule
15, the claimant must meet the requirements for reopening a case established by Rules 59
or 60.” Id. at 616 (citations omitted). “In post-judgment motions to amend . . . ‘the Rule
15 and Rule 59 inquiries turn on the same factors.’” Id. (quoting Morse v. McWhorter,
290 F.3d 795, 799 (6th Cir. 2002)); see also Huff, 2014 WL 2441768, at *2 (The party
seeking to alter or amend judgment under Rule 59(e) “‘must either clearly establish a
manifest error of law or must present newly discovered evidence.’”) (quoting Roger

10

Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2007)). This is
so because, when a motion to amend comes after judgment is rendered, the Court must
balance the competing interests of protecting the finality of judgments with freely
allowing amendment under Rule 15, which would “sidestep the narrow grounds for
obtaining post-judgment relief under Rule 59[.]” Leisure Caviar, 616 F.3d at 616
(citation omitted).
Plaintiffs’ motion to amend, evaluated by the same factors as their Rule 59
motion, fails for the reasons discussed above. Moreover, plaintiffs’ threadbare request for
leave to amend as an alternative to their motion for reconsideration is just the kind of
“throwaway language” that falls short of applicable pleading standards. See Kuyat v.
BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014). In addition, plaintiffs
failed to attach a proposed amended complaint for the Court’s consideration, or otherwise
explain how an amended complaint would address the deficiencies of their original
complaint that resulted in dismissal. Id. (“Both because the plaintiffs did not present an
adequate motion and because they did not attach a copy of their amended complaint, the
district court did not abuse its discretion in refusing to allow the plaintiffs to amend their
complaint based on the final sentence of the plaintiffs’ memorandum in opposition.”); see
also Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006) (“A district court may deny a
plaintiff leave to amend his or her complaint . . . when the proposed amendment would be
futile.”). Furthermore, plaintiffs do not explain why they failed to seek leave to amend
their complaint in response to defendant’s motion to dismiss prior to entry of judgment.
Morse, 290 F.3d at 800 (“[I]n the post-judgment context, we must be particularly mindful

11

of not only potential prejudice to the non-movant, but also the movant’s explanation for
failing to seek leave to amend prior to the entry of judgment.”).
Considering the deficiencies of plaintiffs’ request for leave to amend their
complaint after judgment has been rendered, the need for the finality of judgments, and
the narrow grounds for obtaining post-judgment relief under Rule 59, the Court
concludes that plaintiffs’ request for leave to amend is not well-taken, and is denied.
ADA claims are dismissed with prejudice
Plaintiffs also request that the Court change its dismissal of counts I and II from
dismissal with prejudice to dismissal without prejudice so that they may file a new
complaint. “It is well established that the sustaining of a motion to dismiss for
insufficiency of the complaint serves as an adjudication on the merits[.]” Guzowski v.
Hartman, 849 F.2d 252, 255 (6th Cir. 1988). For the same reasons that the Court adheres
to its original decision dismissing counts I and II under Rule 59 and denies plaintiffs’
motion for post-judgment leave to amend their complaint, the Court also denies
plaintiffs’ request to amend the dismissal of counts I and II to dismissal without
prejudice.
III. CONCLUSION
Plaintiffs’ motion for reconsideration is granted. For all of the foregoing reasons,
having reconsidered in light of plaintiffs’ motion, the Court adheres to its original
decision.
IT IS SO ORDERED.
Dated: December 4, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

12