Fambrough-McCoy v. White Castle System, Inc.

Filing 13

ORDER granting 7 Defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 7) is hereby GRANTED. Plaintiffs federal age (Count One) and disability (Count Two) discrimination claims are DISMISSED WITH PREJUDICE, but her state age (Co unt Three) and disability (Count Four) discrimination claims, brought pursuant to Ohio Rev. Code §§ 4112.14, 4112.99 and §§ 4112.02(A), 4112.99 respectively, are DISMISSED WITHOUT PREJUDICE.. Signed by Judge Susan J. Dlott on 7/20/17. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RACHAEL FAMBROUGH-MCCOY,
Plaintiff,
v.
WHITE CASTLE SYSTEM, INC.,
Defendant.

Case No. 1:17-cv-00019

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Judge Susan J. Dlott
ORDER

This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(6). (Doc. 7.) Plaintiff has filed a memorandum in opposition (Doc. 10), to which
Defendant has replied (Doc. 11). For the reasons that follow, Defendant’s Motion will be
GRANTED.
I.

BACKGROUND1
Plaintiff was terminated from White Castle’s employ on July 14, 2014 after 32 years of

service. (Doc. 1 at PageID 3 (¶ 9).) She was 51 years old. (Id. at PageID 4 (¶ 15).) Plaintiff
subsequently filed a charge with the Ohio Civil Rights Commission alleging discrimination
based on her age. (Id. at PageID 2 (¶ 5).) On April 18, 2015, Plaintiff received a Notice of Right
to Sue from the U.S. Equal Employment Opportunity Commission relating to this charge. (Id. at
PageID 2 (¶ 6), 10.) On July 17, 2015, the 90th day following her receipt of the Notice of Right
to Sue, Plaintiff, through her attorney Donald B. Hordes,2 filed a four-count Complaint in the

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The motion to dismiss pending before the Court is brought pursuant to Fed. R. Civ. P. 12(b)(6). For purposes of
deciding it, therefore, we accept as true the factual allegations made by Plaintiff in her Complaint. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
2
Mr. Hordes was then affiliated with the Cincinnati law firm Schwartz Manes Ruby & Slovin. See FambroughMcCoy v. White Castle System, Inc., Case No. 1:15-cv-00474 (Complaint, Doc. 1 at PageID 10).

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Southern District of Ohio alleging discrimination on the basis of age and disability under federal
and state law. Fambrough-McCoy v. White Castle System, Inc., Case No. 1:15-cv-00474
(“Fambrough-McCoy I”) (Complaint, Doc. 1). Plaintiff did not serve that Complaint on White
Castle. Instead, on January 7, 2016—nearly six months later—she filed a dismissal pursuant to
Fed. R. Civ. P. 41(a)(1)(A)(i). Id. (Notice of Dismissal of Complaint without Prejudice, Doc. 2).
That pleading stated, “Plaintiff shall be re-filing her Complaint in the very near future.” Id.
(Doc. 2 at PageID 10).
On January 9, 2017—just over one year later—Plaintiff, again represented by Mr.
Hordes,3 filed her Complaint in this civil action. (Doc. 1.) Plaintiff served White Castle on
April 6, 2017, approximately three months later. (Doc. 4.) White Castle has moved to dismiss
Plaintiff’s Complaint because her federal age and disability discrimination claims are timebarred. (Doc. 7 at PageID 23–24.) And because her federal claims merit dismissal, White Castle
urges the Court to decline to exercise supplemental jurisdiction over her remaining state law
claims. (Id. at PageID 24–25.) For her part, Plaintiff “does not dispute Defendant’s chronology
of the material facts underlying its Motion,” and she has “no quarrel with Defendant’s legal
analysis as set forth in its Motion.” (Doc. 10 at PageID 30, 31.) Nonetheless, given the “unique
circumstances of this case,” she asks the Court to “invoke the doctrine of equitable tolling so as
to extend the 90 day statute of limitations and allow her current Complaint to stand.” (Id. at
PageID 31.)4

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Mr. Hordes is now affiliated with the Cincinnati law firm of Ritter & Randolph, LLC. (Doc. 1 at PageID 9.)
Plaintiff has requested oral argument on Defendant’s Motion to respond to any “new arguments” Defendant makes
in its reply regarding the issue of equitable tolling. (Doc. 10 at PageID 40.) The Court determines that oral
argument would not be helpful, inasmuch as this issue is not complex. S. D. Ohio Civ. R. 7.1(b)(2).
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II.

STANDARD OF LAW
Fed. R. Civ. P. 12(b)(6) allows a party to move to dismiss a complaint for “failure to state

a claim upon which relief can be granted.” To withstand a dismissal motion, a complaint must
contain “more than labels and conclusions [or] a formulaic recitation of the elements of a cause
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts do not require
“heightened fact pleading of specifics, but only enough facts to state a claim for relief that is
plausible on its face.” Id. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A district court
examining the sufficiency of a complaint must accept the well-pleaded allegations of the
complaint as true. Id.; DiGeronimo Aggregates, LLC v. Zemla, 763 F.3d 506, 509 (6th Cir.
2014).
III.

ANALYSIS
Under both the Age Discrimination in Employment Act (“ADEA”) and the Americans

with Disabilities Act (“ADA”), a potential plaintiff has 90 days from the date of her receipt of an
EEOC-issued Notice of Right to Sue to initiate a civil action against her former employer.
29 U.S.C. § 626(e) (ADEA) (“A civil action may be brought under this section . . . against the
respondent named in the charge within 90 days after the date of the receipt of such notice [of
right to sue].”); 42 U.S.C. § 121175 (ADA); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466
U.S. 147, 149 (1984). Notably, “the filing of a complaint which is later dismissed without
prejudice does not toll the [90-day] statutory filing period of Title VII.” Wilson v. Grumman
Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987) (emphasis added). Wilson remains good law in the
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The powers, remedies, and procedures applicable to employment discrimination actions under Title VII apply to
the ADA. 42 U.S.C. § 12117(a). Title VII provides that “within ninety days after the giving of such notice [of right
to sue] a civil action may be brought against the respondent named in the charge.” 42 U.S.C. § 2000e-5(f)(1).

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Sixth Circuit. See, e.g., Chiancone v. City of Akron, No. 5:11CV337, 2011 WL 4436587, at *5–
6 (N.D. Ohio Sept. 23, 2011).
Plaintiff timely filed her federal age and disability discrimination claims on the 90th day
following receipt of her Notice of Right to Sue in Case No. 1:15-cv-00474. However, after she
voluntarily dismissed her initial Complaint, she waited more than a year to refile despite her
pledge to do so “in the very near future.” See Fambrough-McCoy I (Notice of Dismissal of
Complaint Without Prejudice, Doc. 2 at PageID 10). Plaintiff’s refiled Complaint comes more
than 630 days after receipt of her Notice of Right to Sue, and White Castle was not served until
nearly another 90 days had passed. Without question, the federal discrimination claims pled in
Plaintiff’s refiled Complaint are well out of time. Whether equitable tolling should apply to save
her federal claims is discussed next.
A. Equitable Tolling
Equitable tolling is to be “carefully applied.” Andrews v. Orr, 851 F.2d 146, 151 (6th
Cir. 1988). Five factors warrant consideration: (1) lack of actual 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 for filing her claim. Id.;
see Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003); Seoane-Vazquez v. Ohio State
Univ., 577 F. App’x 418, 426–27 (6th Cir. 2014). There is no indication from the Sixth Circuit
that this list of five is comprehensive, however, or that all five will be “material” in all cases.
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir 2000)
(citing Truitt v. Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). Rather, “the decision to

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allow equitable tolling is made on a case-by-case basis.” Steiner, 354 F.3d at 435 (citing Seay v.
Tenn. Valley Auth., 339 F.3d 454, 469 (6th Cir. 2003)).
The version of Fed. R. Civ. P. 4(m) in effect at the time Plaintiff filed her initial
Complaint on July 17, 2015 stated:
If a defendant is not served within 120 days6 after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period. . . .
(Emphasis added.) Acknowledging that he is “an experienced employment litigation attorney,”
Mr. Hordes concedes that he had constructive knowledge of the service deadline, but denies
actual knowledge “because of the rush of his day to day practice.” (Doc. 10 at PageID 32.) He
bemoans the fact that, instead of receiving “a professional courtesy ‘heads-up’ in the form of an
Order to Show Cause justifying his failure to serve” White Castle, he instead received an email
from the Court’s Administrative Assistant, Vicki Penley. (Id. at PageID 32–33.) Ms. Penley’s
email, sent January 5, 2016, was to the point:
This case was filed on 7/17/15. No service, no answer . . . . . What is the status?
(Attachment to Hordes Aff., Doc. 10 at PageID 44 (¶ 5), 46.) Mr. Hordes recalls immediately
telephoning Ms. Penley, and testifies:
While I do not remember precisely what she related to me, my best recollection is
that she advised me that the 120 day deadline for serving Defendant had long
passed, and that my client’s Complaint was non-longer [sic] viable. I don’t recall
her mentioning anything about my opportunity to seek an extension to serve under
Rule 4(m), or the issuance of an Order to Show Cause. I told her that I
supposed my only option was for me to dismiss my client’s Complaint
without prejudice under Rule 41(a) of the Federal Rules of Civil Procedure
so I would be able to re-file it within a year. I don’t recall any further
comment from Ms. Penley.

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On December 1, 2015, Rule 4(m) was amended to reduce the presumptive time for serving a defendant from 120
days to 90 days.

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(Id. at PageID 44 (¶ 9) (emphasis added).) Two days later, on January 7, 2016, he filed such a
Notice on behalf of his client. (Id. at PageID 45 (¶ 10).) Mr. Hordes acknowledges he was
“remiss” in not “keeping track” of the service deadline, but explains:
[I]n addition to the normal pressure of my litigation case load, I had been for the
last three months of 2015 been [sic] preoccupied with seeking to transfer my
practice from Schwartz, Manes, Ruby & Slovin to another law firm, which
entailed talking and meeting with other law firms, and auditing and analyzing my
own client base and value of my business. Once I had identified my new law firm,
Ritter & Randolph, LLC, there entailed the usual negotiations of the financial
terms of the new affiliation. After those terms were finalized and I notified
Schwartz, Manes Ruby & Slovin on December 31, 2015 that I was moving my
practice, there ensued the usual negotiations about date of departure, status of
files, allocation of accounts receivable, etc.
(Id. at PageID 44 (¶ 6).)
The short answer7 to Mr. Hordes’ argument is that, as an attorney, he is considered to
have both actual and constructive notice of all periods of limitations. See Amini v. Oberlin
College, 259 F.3d 493, 500 (6th Cir. 2001). And Mr. Hordes’ knowledge must be imputed to
Plaintiff. Further, the “competing distractions” he asks the Court to take into consideration
provide no excuse. (See Doc. 10 at PageID 34 n.3.) The “pressures” of “transitioning his files
and clients to his new firm, working out the usual and oftentimes contentious financial issues
with the firm from which he was departing, and other related administrative problems associated

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The specifics of Mr. Hordes’ affidavit prompt a supplemental response. Counsel fails to realize that his lack of
awareness of the service deadline established in Rule 4(m) is subordinate to his lack of awareness of the
consequence of voluntarily dismissing his client’s initial Complaint under Rule 41(a)(1)(A). He blames the
inexactitude of Rule 4(m). (Doc. 10 at PageID 34: “There is no language therein highlighting the different impact
of dismissing a statutory discrimination Complaint without prejudice, as opposed to any other federal Complaint
without prejudice.” (emphasis in original)). He denounces the “inadvertent failure” of this Court to issue a “show
cause order” as allowed by Rule 4(m). (Id. at PageID 33–34: “Had it done so, the undersigned would have taken
immediate action to seek an extension of time to effectuate service, thereby avoiding the problem his client is now
facing by virtue of her filing of her notice of dismissal of her Complaint without prejudice.”). And he faults the
unwillingness of the Court’s Administrative Assistant for failing to debate legal strategy with him. (Id. at PageID
33: “The undersigned responded to the effect that there was no other alternative than to dismiss Plaintiff’s
Complaint without prejudice so that he could re-file within a year. Ms. Penley said nothing more in response and
that was the end of the conversation.”). Nonsense. The Sixth Circuit decided Wilson, supra, on April 1, 1987,
nearly 30 years before Mr. Hordes—in an exercise of professional judgment on behalf of his client—filed the Rule
41 Notice in Case No. 1:15-cv-00474.

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with such a move,” while “still carrying on his legal practice” were pressures of his own making.
(Id.) This circumstance clearly is distinguishable from one in which a defendant misleads a
plaintiff into missing a deadline. Steiner, 354 F.3d at 438. Accordingly, the first, second, and
fifth factors weigh against equitable tolling.
Plaintiff fares no better with the third factor. She was diligent in timely filing her initial
Complaint, but having waited until the 90th day, she left herself no flexibility going forward.
And, of course, she failed to effect service within the 120-day deadline then controlling.
Moreover, Plaintiff inexplicably waited more than a year to refile her Complaint and did not
serve White Castle until 87 days (with a 90-day deadline now in place) later.
Regarding factor four, the absence of prejudice to a defendant employer “is not an
independent basis for invoking the doctrine and sanctioning deviations from established
procedures.” Id. at 437 (quoting Baldwin Cnty., 466 U.S. at 152). Yet even if it were, White
Castle would suffer prejudice if the federal claims go forward because the damages available to
Plaintiff under federal age discrimination law are more comprehensive that what are allowed
under Ohio Rev. Code § 4112.14.8
At best, this case amounts to “a garden variety claim of excusable neglect” to which the
principles of equitable tolling do not extend. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990). Thus, Plaintiff’s federal discrimination claims will be dismissed as untimely.
B. Supplemental State Discrimination Law Claims
Having determined that Plaintiff’s federal discrimination claims should be dismissed, the
Court must decide whether to exercise supplemental jurisdiction over her remaining state
discrimination claims. See 28 U.S.C. § 1367(c)(3). “[T]he values of judicial economy,
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Ohio Rev. Code § 4112.14(B) allows for the recovery of lost wages and benefits and the costs—including
attorney’s fees—of the action, but not for an award of compensatory and punitive damages as permitted under
federal age discrimination law.

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convenience, fairness, and comity” inform this decision. Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988). “When the balance of these factors indicates that a case properly belongs
in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages
and only state-law claims remain, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.” Id. (footnote and citation omitted); Musson Theatrical,
Inc. v. Federal Express Corp., 89 F.3d 1244, 1254–55 (6th Cir. 1996) (“When all federal claims
are dismissed before trial, the balance of considerations usually will point to dismissing the state
law claims . . . .”).
The instant litigation is in its very earliest stages. Indeed, White Castle has not yet filed
its Answer. Accordingly, White Castle argues in favor of dismissal. Plaintiff, on the other hand,
maintains that application of the Musson “factors” to the circumstances here “call for the
retention of supplemental jurisdiction” of her state law claims. (Doc. 10 at PageID 37–38.) Not
so.
Following a Rule 12(b)(6) dismissal, “there is a strong presumption in favor of
dismissing supplemental claims” that can be overcome only in “unusual circumstances.”
Musson, 89 F.3d at 1255 (citations omitted). In Musson, the Sixth Circuit noted the Second
Circuit’s “suggestion” that “these ‘unusual circumstances’ must include ‘some prejudice arising
from relegating the case for trial in the state court.’” Id. (quoting Nolan v. Meyer, 520 F.2d
1276, 1280 (2d Cir. 1975).) Then it proceeded to consider nine idiosyncratic factors9 before
concluding that no “unusual circumstances” were present to support the decision to resolve the
plaintiff’s state law claims. Id. at 1255–57.

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Like Defendant, the Court does not read Musson to establish a multi-factor test to be applied in all cases to
determine whether dismissal of supplemental claims is indicated. See Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.
2009) (not applying any test when determining that dismissal of supplemental state law claims was appropriate
when all federal claims were dismissed).

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Plaintiff argues that a “strong likelihood of prejudice” exists if this civil action is
“relegated to state court.” (Doc. 10 at PageID 38 (¶ 2).) She worries that if she “is forced to refile [her] age claim in state court,” White Castle will argue that she “made an ‘irrevocable
election’ of [her] Ohio statutory remedies.” (Id.) Defendant counters that that argument relates
to whether Plaintiff’s filing of an OCRC or EEOC charge constituted an election to pursue her
age discrimination claim administratively instead of through the courts, not whether filing in
state rather than federal court constituted an election of remedies. The Court agrees. It is true
that this Court previously has concluded that “the Ohio Supreme Court would likely rule that
filing a charge of age discrimination with the EEOC does not comprise an election of remedies
under O.R.C. § 4112.05.” Flint v. Mercy Health Partners of Sw. Ohio, 940 F. Supp. 2d 743, 753
(S.D. Ohio 2013) (emphasis added). And, on this basis, this Court held that a pro se filing of an
EEOC charge, deemed filed with the OCRC under Ohio Admin. Code § 4112-3-01(D)(3), was
not an election of remedies under the Ohio statute:
This result acknowledges the complementary nature of federal and state
employment discrimination procedures and disarms the “minefield” Ohio’s
statutory scheme creates for the litigant wanting to pursue a remedy for age
discrimination—something this Court finds particularly important when an
employee is attempting to navigate that minefield without the assistance of legal
counsel.
Id. Plaintiff’s apprehension that this Court’s prediction may be wrong, however, does not justify
an exercise of supplemental jurisdiction that essentially prevents an Ohio court from deciding an
issue of Ohio statutory interpretation.
IV.

CONCLUSION
Based on the foregoing reasons, Defendant’s Motion to Dismiss Pursuant to Fed. R. Civ.

P. 12(b)(6) (Doc. 7) is hereby GRANTED. Plaintiff’s federal age (Count One) and disability
(Count Two) discrimination claims are DISMISSED WITH PREJUDICE, but her state age
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(Count Three) and disability (Count Four) discrimination claims, brought pursuant to Ohio Rev.
Code §§ 4112.14, 4112.99 and §§ 4112.02(A), 4112.99 respectively, are DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED.

Dated: July 20, 2017

S/Susan J. Dlott__________
Judge Susan J. Dlott
United States District Court

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