Norris v. Mehter et al

Filing 26

REPORT AND RECOMMENDATIONS re 18 Defendant City of Cincinnati's Motion to Dismiss. It is RECOMMENDED that Defendant's Motion to Dismiss be DENIED. Objections to R&R due by 3/27/2014. Signed by Magistrate Judge Stephanie K. Bowman on 3/10/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL NORRIS,

Case No. 1:13-cv-48

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.

ARIFF MEHTER, et al.
Defendants.

REPORT AND RECOMMENDATION
On February 7, 2013, Plaintiff, proceeding pro se and in forma pauperis, initiated
this employment discrimination case against three individuals, based upon alleged age,
disability, and race discrimination.

Pursuant to local practice, the case has been

referred to the undersigned magistrate judge for disposition of all pretrial matters,
including the filing of a Report and Recommendation (“R&R”) on any dispositive
motions. See 28 U.S.C. §636(b).
I. Background
As stated, Plaintiff began this litigation as a pro se litigant. A portion of the form
used by pro se litigants that was completed by Plaintiff asks the litigant to provide a brief
statement of the facts of his or her case, including a description of how each defendant
is involved, the names of other persons involved, and relevant dates and places. (Doc.
3 at 2). The entirety of the narrative portion of Plaintiff’s initial complaint stated the
following: “racial discrimination disabilities, age discriminations.” (Doc. 3 at 2). Plaintiff
also attached to his complaint a copy of his EEOC Notice, dated October 22, 2012,

notifying him of his right to sue “the respondent(s)” within 90 days. (Doc. 3 at 4-5). The
individuals originally named as Defendants to Plaintiff’s complaint filed separate motions
to dismiss; a copy of Plaintiff’s original charge of discrimination was attached as an
exhibit to one of the motions. (Doc. 6-1).
On June 11, 2013, the undersigned filed an R&R recommending that the Court
grant both motions by the individual Defendants to dismiss all claims, pursuant to Rule
12(b)(1) and 12(b)(6). (Docs. 6, 7, 12). No timely objections were filed to that R&R.
However, on June 20, 2013, after obtaining counsel, Plaintiff filed a motion seeking to
amend his complaint to add as a new party the City of Cincinnati (“the City”). (Doc. 13).
The undersigned granted that unopposed motion, (Doc. 14), permitting Plaintiff to file
his amended complaint up to and including August 15, 2013.

Thereafter, the

undersigned filed a second R&R in which the Court recommended continuation of
proceedings against the newly named (and sole remaining) Defendant City, conditioned
on the timely filing of an amended complaint.

(Doc. 15).

Because the amended

complaint had not then been filed, the undersigned explained that the case should
remain open only insofar as the amended complaint contained “additional factual
allegations” that “may state a claim against” the City.

The presiding district judge

adopted that R&R for the opinion of the Court on February 28, 2014. (Doc. 25).
Pursuant to the Court’s order, Plaintiff timely filed his amended complaint on
August 14, 2013, (Doc. 16). Plaintiff’s amended complaint, through counsel, is
significantly longer and more detailed than his original pleading, setting forth five
separate causes of action in forty-five (45) paragraphs, and comprising six (6) pages.
(Doc. 16). However, the Defendant City has moved to dismiss, arguing that Plaintiff’s

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amended complaint continues to be legally deficient.

After being granted two

extensions of time, Plaintiff filed a response in opposition on November 14, 2013. (Doc.
24). It does not appear that the parties have yet engaged in substantial discovery; no
Rule 26(f) report has been filed or scheduling order entered.
Having reviewed Defendant’s motion to dismiss and Plaintiff’s response, the
undersigned now recommends that Defendant’s motion be denied, but without prejudice
to Defendant’s right to file a later dispositive motion on similar grounds following the
completion of discovery. Consistent with this recommendation, the parties are directed
to file a Rule 26(f) report by March 31, 2014.
II.

Analysis

A. Iqbal/Twombly Standard of Review
Defendant’s motion seeks dismissal pursuant to Rule 12(b)(1) for lack of subject
matter jurisdiction, pursuant to Rule 12(b)(2), for lack of personal jurisdiction, and
pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted.
Despite citing to other provisions of Rule 12, virtually all of the argument contained in
Defendant’s memorandum in support relates to Rule 12(b)(6).
As discussed in the prior R&R (Doc. 15) recommending the dismissal of
Plaintiff’s initial pro se complaint, dismissal is required when a complaint offers no more
than “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” in violation of the Iqbal/Twombly plausibility standards. See
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To survive a motion to dismiss under
Fed. R. Civ. P. 12(b)(6), Plaintiff’s complaint “must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. “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. (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual
allegations as true but need not “accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). While a complaint does not need to contain “detailed factual allegations,” it
must

provide

“more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
The general standard of review applicable to a motion to dismiss limits
consideration to the pleadings. However, in this instance, Defendant’s motion includes
an affidavit from a City physician, and Plaintiff’s response attaches the affidavit of the
Plaintiff. To that limited extent, the undersigned treats Defendant’s Rule 12(b)(6) motion
as one for summary judgment. See Rule 12(d), Fed. R. Civ. P.
B. Defendant City’s Arguments for Dismissal
1. ADA Claim (Count One)
Count One of Plaintiff’s amended complaint purports to set forth a claim for a
“violation of ADA” and a related Ohio statute. In support of this claim, he alleges that he
suffered a work-related rotator cuff strain “[a]round 2009,” and that around the same
time, he underwent a procedure to place a stint in his chest for kidney dialysis. (Doc. 16
at ¶¶10, 11). After completing a work-hardening program, the City’s physician told
Plaintiff, without explanation and without any accommodations being provided, that he
could not return to work. (Id. at ¶12, 13).

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The Americans with Disabilities Act (“ADA”) requires employers to make
“reasonable” accommodations to any “qualified individual” with a disability who “can
perform the essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. §12111(8). However, Defendant argues that Plaintiff’s claim should
be dismissed because Plaintiff failed to sign a release for his medical records, as
requested by the City physician for the purpose of allowing him to determine any
disability that Plaintiff may have. Defendant has attached a short Memorandum/letter
dated November 14, 2011, to the Senior Environmental Safety Specialist, Public
Service Department, from Dr. Ariff Mehter of the Employee Health Service, that states:
Mr. Michael Norris was seen at Employee Health Service on 11/7/11
regarding his ability to return to unrestricted work. Mr. Norris refused to
sign a release for his medical records. As a result, I am not able to give
my opinion regarding his fitness for duty.
(Doc. 18-1).
Plaintiff argues that Defendant’s argument is “self serving” and does not require
dismissal of his ADA claim, which he insists is based at least in part on his work-related
injury, for which he was treated through the employer’s “work hardening” program with
NovaCare. (See also Plaintiff’s Affidavit, Doc. 24-1).
The undersigned declines to recommend a dismissal of Plaintiff’s ADA claim on
the record presented, and in the context of a Rule 12(b)(6) motion. The memorandum
tendered by Defendant is not authenticated and is asserted by Plaintiff to be “factually
incorrect.” (Doc. 24 at 1). Even assuming that the memorandum was authenticated,
there still may be genuine issues of material fact as to whether Defendant knew or
should have known of Plaintiff’s alleged disability even without the release of records
requested on November 7, 2011, whether Plaintiff offered other proof of his disability (or
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the requested records) either before or after that date, whether Dr. Mehter actually
examined Plaintiff, and/or whether Defendant could be held liable for failing to offer
some “reasonable” accommodations. In short, Plaintiff’s amended complaint is not so
deficient as to be subject to dismissal on its face, and the factual record is insufficient at
this point in time to conclude that Defendant is entitled to judgment as a matter of law.
2. Racial Discrimination (Second Count)
Count Two of Plaintiff’s amended complaint attempts to set forth a claim for
“racial discrimination” in violation of both Title VII and comparable Ohio law. However,
the City argues that Plaintiff has failed to state a claim of racial discrimination.
Plaintiff identifies himself as “a black male and member of a protected class.” In
support of this second claim, Plaintiff alleges that he “was subjected to unprofessional
behavior and treatment by upper level management and immediate supervisors
including being talked to in a condescending manner, embarrassment in front of peers
and overall treatment afforded ‘field hands.’” (Doc. 15 at ¶14, see also id. at ¶25). In
addition, he alleges he was “constantly subjected to racial slurs by supervisors.” (Id. at
¶15). He further alleges that “Defendant allowed an atmosphere of racial disparity and
discrimination, in which minority employees were regularly disparaged by white
counterparts,” and that although Plaintiff “reported this behavior,” “nothing was done to
prevent the continuing discriminatory behavior.” (Id. at ¶¶23, 24).

Plaintiff alleges that

the City’s actions were “reckless and intentional…and ….meant to harass the Plaintiff
into quitting.” (Id. at ¶26).

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Defendant argues that Plaintiff has failed to properly allege that members outside
the protected class were treated differently than he was, or that he suffered an adverse
employment action as a result of his more general allegations of racial discrimination.
The undersigned again finds dismissal at this stage of the proceedings to be
inappropriate. Defendant cites no controlling authority, and the undersigned finds none,
that would require an explicit statement that members outside the protected class were
treated differently than he was in the face of a complaint that so strongly implies that
fact.

Here, Plaintiff’s allegations of “racial disparity and discrimination” whereby

“minority employees were regularly disparaged by white counterparts,” appear sufficient
as a matter of law, given the commonly understood definition of the term “disparity.”
(Doc. 15 at ¶23, italics added).
The issue of whether Plaintiff has properly pleaded an adverse employment
action is closer, insofar as Plaintiff appears to have pleaded only being “continually
subjected to racial slurs, taunts and ‘jokes,’” and not necessarily the type of adverse
employment action that is actionable under Title VII and the related Ohio Revised Code,
Chapter 4112.

Nevertheless, the undersigned will recommend that Plaintiff’s claim

proceed at this preliminary stage of review.
3. ADEA (Third Count)
Count Three of Plaintiff’s amended complaint alleges that the Defendant City
violated the Age Discrimination Employment Act (“ADEA”), and analogous Ohio law, as
well as 42 U.S.C. §1981 and 42 U.S.C. §1983. 1 (Doc. 16 at ¶28). As supporting
allegations, Plaintiff alleges that he is over the age of 40, and that “Management,
starting in 2008 up to Plaintiff’s termination, on numerous occasions told Plaintiff that he
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Defendant’s motion does not address Plaintiff’s claim under the latter two statutes.

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was too old to do the job.” (Id. at ¶30). Plaintiff further alleges that he was wrongfully
terminated “and replaced…with a younger employee.” (Id. at ¶31).
Under the ADEA, a plaintiff must prove that the employer took an adverse
employment action “because of” the individual’s age.

See Gross v. FBL Financial

Servs., 557 U.S. 167, 177 (2009). In other words, in order to prove his claim, Plaintiff
must prove that the adverse employment action would not have occurred “but for” his
age. Id.; see also Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir. 2009)(applying
McDonnell Douglas framework post-Gross).

Defendant argues that Plaintiff’s

contention that he was discharged due to an unspecified medical issue, (see Doc. 16 at
¶¶12-13, 17-21), is incompatible with his ADEA claim, because Plaintiff cannot show
that he would not have been terminated “but for” his age.
The undersigned declines to dismiss Plaintiff’s ADEA claim on the ground
asserted by Defendant, because a plaintiff may plead alternative causes of action.
Defendant also argues that Plaintiff “does not claim that a younger person
actually did take his position.” (Doc. 18 at 6). Contrary to that contention, however,
paragraph 31 of Plaintiff’s complaint alleges that Defendant “wrongfully terminated
Plaintiff and replaced plaintiff with a younger employee despite the fact that Plaintiff was
capable of performing the job,” while the next paragraph alleges that “said termination
was intentionally done in order to remove Plaintiff to allow a younger person to work in
Plaintiff’s place.” (Id. at ¶32).
4. Retaliation/Public Policy (Fourth Count)
Count Four of Plaintiff’s amended complaint alleges that the Defendant City
engaged in retaliation against Plaintiff in violation of “State and Federal Law and

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contrary to public policy embodied in the statutes, code and case law of the State of
Ohio and United States....” (Doc. 16 at ¶38). The Defendant City, inferring that Plaintiff
is attempting to state a Title VII retaliation claim, argues that the claim is subject to
dismissal based upon Plaintiff’s failure to show that he engaged in protected activity that
was known to the Defendant City. The Defendant points out that Plaintiff alleges only
that he “complained of discriminatory treatment and racial disparity he experienced from
2003 to the point he was terminated, and was retaliated against by his superiors and
immediate supervisors,” but Plaintiff fails to allege what if any specific adverse
employment action was taken in relation to his complaints.
Notwithstanding Defendant’s argument, Plaintiff does reference that the
unspecified retaliatory behavior “was a direct result” of Plaintiff’s use of “the grievance
process” for his discrimination complaints. (Doc. 16 at ¶36). In addition, in his affidavit
filed as an exhibit to his response to Defendant’s motion, Plaintiff alleges that he “was
retaliated against when I was not allowed to return to work after undergoing a ‘work
hardening’ program through NovaCare.” (Doc. 24-1 at ¶7). As with Plaintiff’s other
claims, the undersigned concludes that Plaintiff’s retaliation claim should not be subject
to dismissal under Rule 12(b)(6) for failing to allege adverse employment action.
Defendant also contends that Plaintiff’s “general reference to a union grievance
is not sufficient to equate with protected activity” under Title VII. See, e.g., Gonzalez v.
New York City Transit Authority, 2001 WL 492448, 2001 U.S. Dist. LEXIS 5908
(S.D.N.Y. May 9,2001)(R&R holding that the filing of a union grievance did not
constitute “protected activity” where the grievance did not discuss discrimination or Title
VII). Defendant does not cite to controlling case law from the Sixth Circuit on this issue,

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and the cases that are cited allow for a union grievance to constitute “protected activity”
so long as it presents Title VII or similar discriminatory issues. In addition, the
allegations in Plaintiff’s complaint do not actually describe the “grievance” as a “union
grievance,” do not explain whether he presented Title VII issues in that context, and do
not identify whether the complaints that Plaintiff allegedly made to his supervisors were
limited to union proceedings, or whether he is attempting to claim some other protected
activity. For that reason, dismissal at this stage of the litigation is not recommended.
5. Malicious/Reckless/Wantonness [sic] (Fifth Count)
Count Five of Plaintiff’s amended complaint alleges that the Defendant City’s
actions “were done out of malice, recklessness and/or wanton behavior,” that the
discriminatory treatment “was intentionally done” in a manner intended to “ouster [sic]
Plaintiff from his job,” and encouraged and sanctioned by Plaintiff’s supervisors. (Doc.
16 at ¶¶38-40). Plaintiff alleges that “under Ohio Law a municipality may be held liable
for injuries caused by an official of the municipality who is in the course of performing
their duties if said officials [sic] actions are malicious, reckless or wanton.” (Id. at ¶44).
Plaintiff seeks an award of punitive damages based upon Defendant’s “wanton”
behavior. (Doc. 16 at ¶45). Defendant’s present motion does not address Plaintiff’s
claim for punitive damages.
III. Conclusion
Even though this case has been pending for over a year, it is still quite early in
the litigation process, due in part to the late entrance of counsel on Plaintiff’s behalf, the
filing of an amended complaint naming the City as a new Defendant, and the City’s
decision to file a motion to dismiss (as was its right) in lieu of an answer. While Plaintiff

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now proceeds through counsel, it is evident from the amended complaint and the City’s
motion that many of his claims are supported by relatively few factual allegations. Still,
for the reasons discussed, I do not find the claims to be so conclusory – or the material
facts so undisputed - that Plaintiff’s complaint is subject to dismissal for failure to state a
claim either on the pleadings, or in consideration of the single exhibit offered by
Defendant in support of its motion to dismiss. In short, Plaintiff is entitled to proceed
with discovery. If after discovery has been completed the City has reason to re-file a
dispositive motion on similar grounds, pursuant to Rule 56, it may do so at that time.
For the reasons stated, IT IS RECOMMENDED THAT Defendant’s motion to
dismiss (Doc. 18) be DENIED.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL NORRIS,

Case No. 1:13-cv-48

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.

ARIFF MEHTER, et al.
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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