Nelson v. Clermont County Veterans' Service Commission

Filing 34

ORDER granting 26 Motion to Dismiss (construed as a motion pursuant to Rule 12(c)). Counts One and Two are Dismissed. This case shall proceed to trial as previously scheduled by the Court. Signed by Judge Herman J. Weber on 6/6/12. (do1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KRISTAN D. NELSON,
Plaintiff

v.

Case No. 1:11-cv–335-HJW

CLERMONT COUNTY VETERANS’
SERVICE COMMISSION, et al.,
Defendants

ORDER

Pending is the defendant’s “Motion to Dismiss” (doc. no. 26), which the plaintiff
opposes. Having fully considered the pleadings, the parties’ briefs, and applicable
authority, the Court will grant the motion for the following reasons:
I. Factual Allegations and Procedural History
In her amended complaint, plaintiff indicates that she was hired by the
Veteran’s Service Commission (“VSC”) in Clermont County, Ohio, as an
administrative assistant in 2002 (doc. no. 6, ¶ 5). In January of 2007, Danny Bare
became her new supervisor (¶ 7). In December of 2008, he gave her an overall
performance rating of “Very Good.” In August of 2009, Ms. Nelson discovered that
her child had been injured by unknown assailants several months earlier in June of
2009. According to plaintiff, she and her daughter both developed extreme anxiety,
depression, and posttraumatic stress disorder (“PTSD”) (¶ 8). Plaintiff requested,

and was granted, five weeks of FMLA leave from September 29, 2009 through
November 8, 2009 “to care for her daughter during her mental health crisis” and “to
cope with her own serious health condition” (¶¶ 8- 9).
When plaintiff returned to work on November 9, 2009, she alleges that Mr. Bare
summoned her to his office and, in the presence of Mark Coyle, a senior VSC officer,
asked her for a breakdown of her workflow, including the specific amount of time she
spent on each of her job duties on a daily, monthly, and annual basis (¶ 12). That day,
they also discussed some overtime hours she claimed to have worked several
months earlier, but had not reported (¶ 13). According to plaintiff, Mr. Bare insisted
that she submit an amended time report accurately reflecting her hours. Plaintiff
submitted claims for overtime and received payment.
After her FMLA leave concluded, plaintiff alleges that it was “necessary” on
occasion for her daughter to accompany her to work, due to the daughter’s PTSD (¶
11). According to plaintiff, Mr. Bare informed her on November 13, 2009, that it was
not appropriate for her teenage daughter to be present in the workplace (¶ 14) and
that she “must choose between caring for her daughter or keeping her job” by
November 18, 2009 (¶ 15). Plaintiff met with Elizabeth Mason, Asst. Prosecuting
Attorney for Clermont County, on November 16, 2009, to inquire about filing a
grievance (¶ 17). Plaintiff indicates that Ms. Mason informed Mr. Bare by telephone
that plaintiff was considering filing a grievance against him (¶ 18). Plaintiff alleges
that when she returned to the office, Mr. Bare was angry, told her he had lost all
confidence in her, and criticized her work (¶¶ 19-21).

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Two days later, on November 18, 2009, plaintiff proposed to Mr. Bare that she
work a 35-hour work week schedule, with no lunch time and the work day ending at
2:30 p.m. in order to “care for her suffering daughter” (¶ 22). According to plaintiff,
Mr. Bare advised her that she could either resign or be fired because her “declining
performance to undermine me (sic)” (¶ 23).1
On November 20, 2009, plaintiff received a letter informing her that a
pre-disciplinary hearing was scheduled on November 24, 2009 for charges against her
(¶¶ 24-25). Except for a brief reference to unauthorized overtime, plaintiff’s amended
complaint does not identify the nature of these charges. Plaintiff acknowledges that
she presented no evidence at the pre-disciplinary hearing, but contends that the letter
stating the charges was “vague” (¶ 26). She submitted a written rebuttal after the
hearing (¶ 27). Hearing Officer Sgt. Michael McConnell of the Clermont County
Sheriff’s Department subsequently determined that the VSC had substantiated the
charges against plaintiff (¶ 28). Plaintiff complains that the officer “ignored” her
rebuttal letter (¶ 29) and alleges that the prosecutor (Ms. Mason) threatened to indict
her for submitting claims for unauthorized overtime (¶ 30). Plaintiff contends that this
threat was made to “deter” her from pursuing claims and to “retaliate” against her
for pursuing claims (¶ 30).
On May 14, 2010, plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”) and Ohio Civil Rights Commission

1

Plaintiff has apparently omitted some words from this sentence, but its
meaning is still discernible.
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(“OCRC”) (¶ 31). In that charge, she named only the VSC as her employer and
indicated she was alleging discrimination based on “disability” (doc. no. 13, attached
“Charge”). Plaintiff received a “Right to Sue” letter dated April 7, 2011.
On May 20, 2011, plaintiff filed a six-count federal complaint, alleging pursuant
to the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., the
Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq., and Ohio
R.C. §§ 4112.01(A) and (I). She also alleged intentional infliction of emotional distress
under Ohio common law. Plaintiff named a single defendant – the VSC – as her
employer. Plaintiff then amended her complaint to add a second defendant (“Board
of County Commissioners”) as “employer”(doc. no. 6). Upon motion, the Court
dismissed the Board because it was not plaintiff’s employer as a matter of law (doc.
no. 25 “Order” of March 15, 2012). The VSC then filed the present motion to dismiss
Counts One and Two of the amended complaint (doc. no. 26). The plaintiff responded
(doc. no. 27), and defendant replied (doc. no. 28). This matter is fully briefed and ripe
for consideration.
II. Issues Presented
The main issues before the Court are: 1) whether to dismiss the plaintiff’s ADA
claims because the VSC is not a covered employer with the requisite number of
employees; and 2) whether to dismiss the plaintiff’s state claim of “disability
discrimination” for failure to state a claim because the amended complaint does not
sufficiently allege a) that plaintiff is “disabled” and b) that she sought, and was
denied, reasonable accommodation for her own disability.

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III. Standard of Review
Initially, the Court observes that because the VSC answered the complaint on
June 29, 2011, it must raise its motion under Rule 12(c) rather than Rule 12(b)(6). See
Fed.R.Civ.P. 12(h)(2)(B) (allowing a party to raise the “failure to state a claim” defense
in a motion for judgment on the pleadings pursuant to Rule 12(c)). Federal courts
apply the same standard to Rule 12(b)(6) and 12(c) motions. Poplar Creek
Development Co. v. Chesapeake Appalachia, LLC, 636 F.3d 235, 240 (6th Cir. 2011);
Sensations, Inc., v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008); Lindsay
v. Yates, 498 F.3d 434, 437 (6th Cir. 2007). Therefore, defendant’s motion will be
construed as a motion pursuant to Rule 12(c).
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, 550 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. More is required than "unadorned,
the-defendant-unlawfully-harmed me accusations." Id. “Although the court must
accept well-pleaded factual allegations of the complaint as true for purposes of a
motion to dismiss, the court is not bound to accept as true a legal conclusion
couched as a factual allegation.” Bell Atlantic, 550 U.S. at 555. A plaintiff must
provide the grounds for entitlement to relief “rather than a blanket assertion of
entitlement to relief.” Id. at fn.3.

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IV. Discussion
A. Whether to Dismiss Plaintiff’s ADA Claim in Count One
In Count One, plaintiff alleges that she was discriminated against “because of
her disability and request for a reasonable accommodation” (doc. no. 6 at ¶ 39).
The defendant VSC correctly asserts that the ADA is applicable only to a
“covered” employer, i.e. an employer with 15 or more employees. Specifically, the
ADA, at 42 U.S.C. § 1211(5)(A), provides:
The term “employer” means a person engaged in an
industry affecting commerce who has 15 or more
employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year,
and any agent of such person, except that, for two years
following the effective date of this subchapter, an
employer means a person engaged in an industry
affecting commerce who has 25 or more employees for
each working day in each of 20 or more calendar weeks in
the current or preceding year, and any agent of such
person.
The threshold number of employees is an element of the plaintiff's ADA claim.
Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (and further noting that this element
is not jurisdictional).
To state a viable claim under the ADA, a complaint must indicate that the
defendant is actually a covered employer with the requisite number of employees
under the statute. Plaintiff’s amended complaint fails to indicate the number of
people employed by the VSC, and plaintiff appropriately concedes in her response
that the VSC lacks the requisite number of employees to be a “covered” employer for
purposes of the ADA (doc. no. 27 at 3). Moreover, plaintiff’s OCRC charge indicates

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that the VSC has only eleven employees (doc. no. 13, Ex. 1). A court may properly
consider “exhibits attached [to the complaint], 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”
without converting the motion to one for summary judgment. Rondigo, L.L.C. v.
Township of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011); Nixon v. Wilmington
Trust Co., 543 F.3d 354, 357 (6th Cir. 2008). Plaintiff’s amended complaint specifically
refers to this charge (doc. no. 6 at ¶ 31), and the content of the charge is central to
the plaintiff’s claims. Given that the VSC is not a “covered employer,” Count One
is subject to dismissal as a matter of law.
The Court notes that plaintiff’s disability discrimination claim under Ohio law
is not subject to dismissal on this basis. The Ohio statute defines the term
“employer” to include “the state, any political subdivision of the state, any person
employing four or more persons within the state, and any person acting directly or
indirectly in the interest of an employer.” Ohio Rev.Code Ann. § 4112.01(A)(2). The
VSC is a political subdivision of Ohio, and thus, meets the definition of “employer”
under the statute. Defendant acknowledges this (doc. no. 26 at 4, fn.1).
B. Whether Plaintiff’s Amended Complaint Fails to State a Claim of “Disability
Discrimination” Under Ohio Law
In Count Two, plaintiff asserts a “disability discrimination” claim under Ohio
R.C. § 4112.02 (doc. no. 6 at ¶¶ 40-43). The defendant VSC moves to dismiss this
claim because plaintiff has not sufficiently pleaded that she is “disabled,” nor has

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she pleaded that she sought, and was denied, reasonable accommodation “for her
own alleged disability” (doc. no. 26 at 5-7).
1. Whether Plaintiff has Sufficiently Pleaded that She is “Disabled”
The Ohio Civil Rights Act specifically provides in relevant part that:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the. . . disability . . . of
any person, to discharge without just cause, to refuse to
hire, or otherwise to 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 R.C. § 4112.02(A).
The parties agree that the elements of a claim of disability discrimination under
Ohio R.C. § 4112.02(A) are: (1) the plaintiff was disabled within the meaning of the
statute; (2) her employer took an adverse employment action against her, at least in
part, based on the disability; and (3) the plaintiff could safely and substantially
perform the essential functions of her job despite her disability (doc. nos. 26 at 5; 27
at 6). Both parties cite Hood v. Diamond Prods., Inc., 74 Ohio St.3d 298, 302 (1996).
Although Hood set forth the requirements for a prima facie case, the parties agree
that Hood identified the “elements” of a disability discrimination claim under Ohio
law. See also, Wagner v. Regional Med. Ctr. of Ohio, 194 Ohio App.3d 589, 598 ¶ 22
(Ohio App. 9 Dist. 2011) (“This district and other appellate districts have relied on
Hood in determining how the prima facie case under the McDonnell Douglas
framework should be articulated.”). Of course, the Court here is only considering
whether the amended complaint states a claim for which relief may be granted.
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Ohio law defines “disability” as a “physical or mental impairment that
substantially limits one or more major life activities, including the functions of caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working; a record of a physical or mental impairment; or
being regarded as having a physical or mental impairment.” R.C. § 4112.01(A)(13).
The term “physical or mental impairment” includes “[a]ny mental or psychological
disorder, including, but not limited to . . . emotional or mental illness” R.C. §
4112.01(A)(16)(a)(ii).
Review of the “factual allegations” section of the amended complaint reflects
the allegations that: “both Ms. Nelson and her daughter developed “extreme anxiety
and depression, and posttraumatic stress disorder” and that “Ms. Nelson’s treating
physician noted that Ms. Nelson’s condition would periodically flare up, particularly
in times of stress, rendering her incapable of working” (doc. no. 6 at 3, ¶¶ 8, 10).
While a mere diagnosis by itself is not the same as having impairments of disabling
severity, the condition of PTSD, “can be considered a disability if the impairment
substantially limits one or more major life activities.” Pinchot v. Mahoning Cty.
Sheriff’s Dept., 164 Ohio App.3d 722-23 (Ohio App. 7 Dist. 2005); Mitnaul v. Fairmount
Presbyterian Church, 149 Ohio App.3d 769, 777 (Ohio App. 8 Dist. 2002) (“The mere
fact that the appellant suffered from depression is not sufficient, in and of itself, to
meet the definition of a handicap under R.C. 4112.01. . . to be handicapped . . . the
mental impairment must substantially limit one or more major life activities”).
Defendant takes exception to the adequacy of the allegation regarding

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“periodic flare-ups” (doc. no. 26 at 6) as a mere possibility and suggests that this is
insufficient to state the first element of a disability claim (i.e. that plaintiff was
disabled). Plaintiff responds by submitting her attorney’s affidavit and exhibit, i.e. a
copy of plaintiff’s FMLA certification for the period September 29, 2009 to November
18, 2009 (doc. no. 27-1 at 1-5). Plaintiff apparently equates the fact that she took
FMLA leave in the past with an ongoing “disability.” In any event, it is generally not
appropriate to submit evidence for consideration on Rule 12(c) review.
Because a motion to dismiss under Rule 12 is directed solely at the complaint
itself, the Court must focus on whether the plaintiff is entitled to offer evidence to
support these claims, not whether the plaintiff will ultimately prevail. Bell Atlantic
Corp.,127 S.Ct. at 1965. Given that plaintiff alleges in her amended complaint that her
condition (“extreme anxiety and depression, and posttraumatic stress disorder”)
periodically “rendered her incapable of working,” and taking plaintiff’s allegations as
true, the Court will deem these allegations sufficient for purposes of Rule 12. At this
preliminary stage of the proceedings, plaintiff is only required to allege sufficient
facts, which when accepted as true, “state a claim to relief that is plausible on its
face.”

Iqbal,129 S.Ct. at 1949.

Although defendant argues that the amended

complaint does not adequately allege that plaintiff’s condition “substantially limits”
one or more major life activities so as to be disabling, such issue is essentially a
question of fact not appropriately addressed here.
In its reply, the defendant VSC points out that plaintiff has attempted to rely on
evidence of her FMLA certification without mentioning that her treating physician

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also cleared plaintiff to return to work on November 19, 2009 “without restrictions”
(doc. no. 28 at 1). When a motion to dismiss under Rule 12 is accompanied by
matters outside the pleadings, it is within a district court's discretion to consider
such matters and decide the motion as one for summary judgment under Rule 56.
This Court declines to consider this information here.
2. Whether the Amended Complaint Sufficiently Pleads a Claim for
Denial of Accommodation for Plaintiff’s Alleged Disability
The defendant argues a second basis for dismissal of this claim, namely, that
the amended complaint fails to plead any facts suggesting that plaintiff was “denied
accommodation” for her own alleged disability (doc. no. 26 at 7-10). Count One
presents the plaintiff’s claim of disability discrimination based on a “failure to
accommodate” in violation of the ADA, followed by plaintiff’s claim of disability
discrimination under Ohio law in Count Two.

Defendant therefore reasonably

characterizes plaintiff’s state claim as a “failure to accommodate claim.” Plaintiff,
however, argues in her response that this claim is also based on her termination,
even though Count Two does not so indicate.
Count Two of the plaintiff’s amended complaint does not clarify matters and
merely recites in conclusory fashion that the defendant “discriminated against Ms.
Nelson because of her disability” (doc. no. 6, ¶ 43). “Although the court must accept
well-pleaded factual allegations of the complaint as true for purposes of a motion to
dismiss, the court is not bound to accept as true a legal conclusion couched as a
factual allegation.” Bell Atlantic, 550 U.S. at 555. A plaintiff must provide the factual

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grounds for entitlement to relief “rather than a blanket assertion of entitlement to
relief.” Id. at fn.3.
With respect to accommodation, defendant correctly points out that the
plaintiff’s amended complaint nowhere alleges any facts indicating that she ever
sought an accommodation for any "flare ups" of her alleged “extreme anxiety,
depression, and PTSD.” Although plaintiff alleges that she sought a modified work
schedule just before the defendant terminated her employment, she indicates the
reason for such request was to take care of her daughter. Specifically, the amended
complaint indicates that plaintiff proposed “a 35-hour work week schedule, with no
lunch time and the work day ending at 2:30, which would allow Ms. Nelson to both
care for her suffering daughter, without bringing her to work, and yet satisfactorily
meet Ms. Nelson’s job responsibilities” (doc. no. 6 at ¶ 22). The defendant correctly
points out that the legal basis for plaintiff’s claim of disability discrimination based
on failure to accommodate must be plaintiff’s own disability, not her daughter’s
condition (doc. no. 26 at 7-10).
Defendant asserts that a plaintiff who is “disabled” for purposes of R.C. §
4112.02 may establish a discrimination claim by showing that the employer has
declined to make a reasonable accommodation for the plaintiff’s known disabilities.
Niles v. Natl. Vendor Servs, Inc. Slip Copy, 2010 WL 3783426 (Ohio App. 10 Dist).
Defendant further asserts that an employee's claim must be dismissed if the
employee fails to identify and request a reasonable accommodation for her own
disability (doc. no. 26 at 4, citing Niles v. Natl. Vendor Servs, Inc., Slip Copy, 2010 WL

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3783426 (Ohio App. 10 Dist.); Johnson v. Cleveland City School Dist., 443 Fed. Appx.
974 (6th Cir. 2011); Tubbs v. Formica Corp., 107 Fed. Appx. 485, 488–89 (6th Cir.
2004)). While the cases cited by defendant all involved summary judgment, the
amended complaint in the present case does plainly indicate on its face that plaintiff
sought the modified schedule to care for her daughter, rather than her own alleged
condition.2
To the extent Count Two is alleging that plaintiff was “discriminated” against
due to her daughter’s disability, the Court of Appeals for the Sixth Circuit has
observed that there is no such “associational” discrimination claim under Ohio law.
Smith v. Hinkle Mfg., Inc., 36 Fed. Appx. 825, 830–31 (6th Cir. 2002) (pointing out that,
unlike the ADA, the Ohio discrimination statute “contains no comparable prohibition
against associational discrimination”); Berry v. Frank's Auto Body Carstar, Inc., 817
F.Supp.2d 1037, 1047-48 (S.D.Ohio 2011) (“This Court has followed the holding of
Smith, as has the Northern District of Ohio.”); Sturgeon v. So. Ohio Med. Center,
2011 WL 5878387 (S.D. Ohio) (J. Delott) (holding that there “is no associational
disability claim under Ohio law” and that plaintiff’s claim failed as a matter of law);
Winkelmann v. Big Lots Stores, Inc., 2009 WL 3788673, at *1 (S.D.Ohio 2009) (“the
Ohio discrimination statute, unlike federal law, contains no prohibition against
associational discrimination”); Baker v. City of Toledo, Ohio, 2007 WL 1101254, at
*6 (N.D.Ohio 2007) (“The Ohio statute contains no similar provision for ‘associational

2

In Count Three, plaintiff separately alleges she was terminated in retaliation
for using FMLA leave (doc. no. 6 at ¶¶ 44-51).
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disabilities' and, therefore the Court holds there is no such claim under state law.”);
Anthony v. United Telephone Co. of Ohio, 277 F.Supp.2d 763, 776 (N.D.Ohio 2002)
(holding that “Ohio law does not recognize such a claim”).
To the extent the plaintiff’s disability discrimination claim under Ohio R.C. §
4112.02(A) is based on this theory, her claim fails as a matter of law.

Plaintiff

attempts to overcome this shortcoming in pleading by suggesting that an
accommodation for the purpose of taking care of her daughter would “mitigate Ms.
Nelson’s own stress and PTSD flare-ups” (doc. no. 27 at 13). She provides no
persuasive authority for this theory. She cites several out-of-circuit ADA cases that
do not concern Ohio law and that do not accurately stand for the suggested
proposition that she may rely on someone else’s disability that is “linked”to her own
(Id., citing Estades Negroni v. Assoc. Corp. of N.A., 377 F3d 58, 64 (2004) (holding that
the plaintiff’s request for an accommodation must be “linked” to the plaintiff’s
disability that is known to the employer).
V. Conclusion
Plaintiff’s ADA claim (Count One) is subject to dismissal because the
defendant VSC is not a “covered employer” with the statutorily-required number of
fifteen employees. Plaintiff’s claim of disability discrimination (Count Two) is subject
to dismissal because plaintiff has not alleged that she was denied an accommodation
for her own disability, and moreover, there is no “associational” disability cause of
action under Ohio law.
Accordingly, the defendant’s “Motion to Dismiss” (doc. no. 26) is construed

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as a motion pursuant to Rule 12(c) and is GRANTED; Counts One and Two are
DISMISSED; this case shall proceed as scheduled.
IT IS SO ORDERED.

s/Herman J. Weber
Herman J. Weber, Senior District Judge
United States District Court

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