Miller v. Food Concepts International, LP et al

Filing 27

ORDER granting in part and denying in part (22) Motion for Leave to File an amended complaint case 2:13-cv-00124-ALM-MRA; granting in part and denying in part (24) Motion for Leave to File amended complaint case 2:13-cv-00125-ALM-MRA; granting in p art and denying in part (23) Motion for Leave to File an amended complaint case 2:13-cv-00126-ALM-MRA; granting in part and denying in part (24) Motion for Leave to File an amended complaint case 2:13-cv-00127-ALM-MRA; granting in part and denying in part (25) Motion for Leave to File an amended complaint case 2:13-cv-00130-ALM-MRA; granting in part and denying in part (23) Motion for Leave to File amended complaint case 2:13-cv-00132-ALM-MRA; granting in part and denying in part (23) Motion for Leave to File an amended complaint case 2:13-cv-00133-ALM-MRA; granting in part and denying in part (22) Motion for Leave to File amended complaint case 2:13-cv-00134-ALM-MRA. Signed by Magistrate Judge Mark R. Abel on 10/03/2013. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Stephanie Swint,

:
Plaintiff

:

:
:

Judge Marbley

:

v.

Civil Action 2:12-cv-0480
And Consolidated Abuelo Cases:
2:12-cv-0543 (Sowell)
2:13-cv-0124 (Miller)
2:13-cv-0125 (Crozier)
2:13-cv-0126 (Coleman)
2:13-cv-0127 (Gibbs)
2:13-cv-0129 (Johnson)
2:13-cv-0130 (Troyer)
2:13-cv-0131 (Autrey)
2:13-cv-0132 (Tigner)
2:13-cv-0133 (McEldowney)
2:13-cv-0134 (Keegan)

Magistrate Judge Abel

:

Food Concepts International, LP, et al. ,
Defendants

:
:
:
:

Order
This matter is before the Magistrate Judge on plaintiff Rachel Autrey's July 17,
2013 motion for leave to file an amended complaint (doc. 22).
Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend the
complaint after a responsive pleading has been filed only by leave of court, but requires
that such leave "be freely granted when justice so requires." Rule 15(a), Fed. R. Civ. P.
That standard was construed by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182
(1962):

1

If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In
the absence of any apparent or declared reason--such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party
by virtue of the allowance of the amendment, futility of
amendment, etc.--the leave sought should be "freely given."
Of course, the grant or denial of an opportunity to amend is
within the discretion of the District Court . . . .
See, Duggins v. Steak 'N Shake, 195 F.3d 828, 834 (6th Cir. 1999).
The Sixth Circuit has ruled that "[i]t is well settled that the district court may
deny a motion for leave to amend a complaint if such complaint, as amended, could not
withstand a motion to dismiss." Neighborhood Dev. Corp. v. Advisory Council on Historic
Preservation, 632 F.2d 21, 23 (6th Cir. 1980) (citing Buron v. California, 438 F.2d 637 (9th
Cir. 1971) (per curiam); Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir. 1994). A court will
not ordinarily consider the merits of a proposed amended complaint in ruling on a
motion for leave to amend unless it appears to be frivolous. See Madison Fund, Inc. v.
Denison Mines Ltd., 90 F.R.D. 89, 91 (S.D.N.Y. 1981); Key Pharmaceuticals, Inc. v. Lowey, 54
F.R.D. 445, 449 n.5 (S.D.N.Y. 1972). Normally, the merits of a complaint are best
resolved through a motion to dismiss or a motion for summary judgment. See WIXT
Television, Inc. v. Meredith Corp., 504 F. Supp. 1003, 1010 (N.D. N.Y. 1980). However, if
there is no set of facts which could be proved under the amendment which would
constitute a valid and sufficient claim, leave should be denied. See Cooper v. American
Employers' Ins. Co., 296 F.2d 303, 307 (6th Cir. 1961).
2

Allegations in the Proposed Amended Complaint. The proposed amended
complaint contains numerous allegations concerning other employees that are
unrelated or not directly relevant to plaintiff’s claims. With respect to Autrey
specifically, the proposed amended complaint asserts that DelVecchio and Myers
treated plaintiff less favorably than other employees and harassed her based on her
gender. Proposed Am. Compl. ¶¶ 31-32. Within the first two weeks of April 2010,
DelVecchio physically moved plaintiff from the location in which she was standing and
made a demeaning comment about women. On July 17, 2010, plaintiff witnessed
DelVecchio physically assault a female employee. Id. at ¶ 33. Between November 2009
and April 2011, plaintiff witnessed Myers’s discriminatory practices regarding gender.
Id. at ¶ 35. During April 2010, plaintiff witnessed DelVecchio’s discriminatory practices
regarding gender. Id. at ¶ 36. Plaintiff was repeatedly subject to unwelcome harassment
by DelVecchio, and he treated other employees more favorably that female employees.
Id. at ¶¶ 40-41. DelVecchio made gender based derogatory comments and referred to
plaintiff and other female employees as “bitches.” Id. at ¶ 42. Plaintiff was subjected to
unwelcome sexual harassment. Id. at ¶ 47. DelVecchio made discriminatory comments
about plaintiff’s gender. Id. at ¶ 48. Caucasian heterosexual employees were disciplined
less severely than female employees. Id. at ¶¶ 51-52. During her employment, plaintiff
was repeatedly subjected to unwelcome abusive and a hostile work environment by
DelVecchio. Id. at ¶ 67. DelVecchio’s harassing conduct was so severe and pervasive
that it altered plaintiff’s working conditions. Id. at ¶ 70. DelVecchio either intended to
3

cause and knew or should have know that his actions would result in serious emotional
distress to plaintiff. Id. at 82. Plaintiff suffered severe emotional distress manifested by
depression, anxiety, elevated blood pressure, weight loss and weight gain. Id. at ¶¶ 8384. DelVecchio’s conduct was so extreme that it went beyond all possible bounds of
decency that it can be considered utterly intolerable in a civilized community and that
no reasonable person would be expected to endure it. Id. at ¶¶ 85-86. Defendant Myers
made derogatory comments about women during management meetings and said that
he did not need any more female managers in the region. Id. at ¶¶ 91-92. On June 18,
2010, Autrey reported that defendant “put his hands on me.” Defendants’ employee’s
notes indicate that this is second time DelVecchio had put his hands on an employee. Id.
at 102. Plaintiff complained to Edward Liniham regarding discrimination and the
hostile work environment. Id. at ¶ 116.
Arguments of the Parties. Defendants argue that the amended pleading would
be futile for all causes of action except for plaintiff's claim for unpaid wages under the
Fair Labor Standards Act and breach of contract. Rachel Autrey worked as a hostess for
Abuelo's restaurant from November 2009 until July 29, 2010. Autrey returned to work at
Abuelo's restaurant on November 20, 2010 until she voluntarily resigned in June 2011.
Defendant Darren DelVecchio worked as the general manager of Abuelo's from April
2010 until January 12, 2011.
Count III of the proposed amended complaint asserts a claim for negligent
retention based on the wrongful acts of DelVecchio. Defendants maintain that the claim
4

for negligent retention is barred by the two year statute of limitations. DelVecchio was
terminated on January 12, 2011, which was the last day he worked at the restaurant.
According to defendants, the last possible date that DelVecchio could have engaged in
wrongful acts toward plaintiff would have been on January 11, 2011, but plaintiff was
not working on that date. Therefore, defendant maintains that plaintiff was required to
file her claim for negligent retention no later than January 10, 2013.1
In response to defendant's opposition, plaintiff filed a reply in support of her
motion stating that Ohio Revised Code § 2305.15 tolls the running of the statute of
limitations during defendant's absence, concealment or imprisonment. Plaintiff argues
that because DelVecchio decided to move to Texas immediately following his
termination, the statute of limitations has not run on plaintiff's claim for negligent
retention.2
Defendants argue that plaintiff's claim for discrimination in violation of Ohio
Revised Code § 4112 also is futile. The proposed amended complaint merely recites
some of the elements for a hostile work environment claim coupled with conclusory
statements. The proposed amended complaint fails to provide any specific facts
1

In their memorandum in opposition, defendants assert that plaintiff was
required to file her claim at least by January 10, 2011, but presumably they meant 2013.
2

Plaintiff's reliance on section 2305.15 of the Ohio Revised Code is misplaced.
Plaintiff's claim for negligent hiring, supervision and retention is not directed toward
DelVecchio. Instead, plaintiff seeks to hold DelVecchio's employer accountable for his
actions. The individuals or entities that were allegedly negligent in their hiring,
supervising and retaining of DelVecchio did not abscond or conceal themselves. As a
result, Section 2305.15 is not applicable, and the statute of limitations was not tolled.
5

supporting plaintiff's claim for discrimination, and it fails to identify the particular
protected class for which she was subjected to discrimination. Instead, the proposed
amended complaint lists all the classes protected by Ohio Revised Code § 4112 without
actually providing facts that identify the protected class of which plaintiff is a member.
Defendants further argue that plaintiff has not provided any specific allegations as to
how defendants discriminated against her. Plaintiff has failed to make any allegations
demonstrating that she can make a prima facie case of discrimination.
Defendants also argue that plaintiff fails to allege any specific facts regarding
how she suffered from a hostile work environment. The majority of plaintiff's
allegations concern other employees. Defendants maintain that the proposed amended
complaint fails to allege that defendants harassed her based on her membership in a
protected class. According to defendants that factual allegations do not demonstrate
that the environment was sufficiently severe or pervasive to be actionable.
Defendants further argue that plaintiff's proposed claim for intentional infliction
of emotional distress fails because the proposed amended complaint does not allege
conduct that was extreme and outrageous that cause severe emotional distress.
Defendants maintain that the proposed amended complaint fails to contain any
allegations demonstrating that she can make a prima facie case of retaliation. Plaintiff
failed to articulate how she engaged in protected activity.

6

Plaintiff failed to make any substantive response to the arguments in defendants’
memorandum in opposition other than to rely on Section 2305.15 of the Ohio Revised
Code with respect to her claim for negligent hiring, supervision and retention.
Discussion. The proposed amended complaint contains conclusory statements
with few factual allegations for their support. For example, with regard to plaintiff’s
claims for a hostile work environment and sexual harassment, plaintiff makes the
following allegations. Plaintiff generally asserts that DelVecchio and Myers treated
plaintiff less favorably than other employees and harassed her based on her gender. See
Proposed Am. Compl. ¶¶ 31-32. Plaintiff provides very little factual details. She asserts
that between November 2009 and April 2011, plaintiff witnessed Myers’s
discriminatory practices regarding gender. Id. at ¶ 35. What these practices were or
what specifically occurred is unknown. Furthermore, plaintiff cites to a six month
period of time with respect to Myer. No specific date, day, shift or conduct is provided.
With respect to defendant DelVecchio, the proposed complaint asserts that during April
2010, plaintiff witnessed DelVecchio’s discriminatory practices regarding gender. Id.
Again, no specific, date, shift or incident is provided. Plaintiff does allege a specific
incident that occurred within the first two weeks of April 2010 in which DelVecchio
physically moved her from the location in which she was standing and made a
demeaning comment about women. No further details are provided. Plaintiff does not
provide the day or shift on which the incident occurred. While it is certainly inadvisable
for a supervisor to physically move an employee from where she is standing, it is
7

difficult to discern from these facts what actually occurred and whether the conduct is
actionable. On July 17, 2010, plaintiff witnessed DelVecchio physically assault a female
employee. Id. at ¶ 33. Plaintiff was repeatedly subject to unwelcome harassment by
DelVecchio, and he treated other employees more favorably that female employees. Id.
at ¶¶ 40-41. Again, no specific details are provided beyond this general statement. No
date or day of the week is provided, nor is the time or shift provided. DelVecchio made
gender based derogatory comments and referred to plaintiff and other female
employees as “bitches.” Id. at ¶ 42. Additional examples of plaintiff’s statements that
fail to provide necessary detail include the following: plaintiff was subjected to
unwelcome sexual harassment, and DelVecchio made discriminatory comments about
plaintiff’s gender. Id. at ¶¶ 47-48. Caucasian heterosexual employees were disciplined
less severely than female employees. Id. at ¶¶ 51-52. The proposed complaint does not
provide any details on how or when plaintiff was disciplined and for what alleged
infraction. Despite the assertion that other employees were treated more favorably, she
provides no examples from which a comparison of treatment can be made. The
proposed complaint makes conclusory statements such as during her employment,
plaintiff was repeatedly subjected to unwelcome abusive and a hostile work
environment by DelVecchio, and his harassing conduct was so severe and pervasive
that it altered plaintiff’s working conditions. Id. at ¶¶ 67 & 70. Even when some factual
allegations are made such as defendant Myers made derogatory comments about
women during management meetings and said that he did not need any more female
8

managers in the region, no dates are provided for the incidents. Id. at ¶¶ 91-92. On June
18, 2010, Autrey reported that defendant “put his hands on me.” Defendants’
employee’s notes indicate that this is second time DelVecchio had put his hands on an
employee. Id. at 102. Here, it is not clear whether Autrey is referring to the earlier
incident that occurred within the first two weeks of April 2010, or if her report was in
regard to a different incident.
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." Id., at 570.
It is difficult to say whether the allegations in the proposed complaint could withstand a
motion to dismiss. For instance, to support her claim for discrimination, a hostile work
environment, and retaliation, plaintiff alleges that female employees were referred to as
bitches and DelVecchio placed his hands on her. There are no further factual allegations
other than general statements that she was subjected to a hostile working environment
and that derogatory comments were made. Other than her dates of employment, few
specific dates are provided. The proposed amended complaint makes the conclusory
allegations that DelVecchio started treating Autrey and other women less favorably
than other employees and harassing them beginning in and around April 2010,
Proposed Am. Compl. ¶ 31; that Myers began treating Autrey and other women less
favorably and harassing them in and around November 2009. Id. at ¶ 32. DelVecchio
physically moved Autry from a location where she was standing and made a
demeaning comment about women. Id. at ¶ 33.
9

A complaint must give defendants fair notice of the claims makes against them
and the grounds on which those claims rest. Rule 8(a), Fed. R. Civ. P.; Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff has been repeatedly instructed to provide
an individualized statement of the claims against each defendant including the dates
on which the actionable conduct allegedly took place. See doc. 9 (March 12, 2013
Scheduling Conference Order); doc. 15 (April 5, 2013 Status Conference Order); doc. 17
(April 25, 2013 Scheduling Conference Order). On May 15, 2013, defendants filed a
motion to dismiss for plaintiff’s failure to comply with this Court’s orders (doc. 18),
which remains pending before the Court. On July 2, 2013, plaintiff was ordered to file
her motion for leave to file an amended complaint on or before July 16, 2013. Plaintiff
file her motions on July 17 and 19.
Plaintiff has not complied with the Court’s Orders to set out the particulars of
each individual plaintiff’s claims. The proposed amended complaints in the related
cases are virtually identical. Each proposed complaint contains allegations concerning
other employees that are unrelated or not directly relevant to plaintiff’s claims. I am
concerned, however, that denying plaintiff’s motions for leave to file amended
complaints, will only continue to increase the expense that defendants have already
incurred as a result of plaintiff’s failure to comply with the Court’s orders and the
requirements of Rule 8 of the Federal Rules of Civil Procedures. Defendants have been
forced to defend against claims that remain unclear even though the case has been
pending over seven months and counsel has been repeatedly directed to provide
10

specific allegations of actionable conduct and corresponding dates for each individual
plaintiff.3 As a result, plaintiff’s motion for leave to file an amended complaint is
GRANTED in part. Plaintiff is DIRECTED to remove all of the allegations concerning
other employees that are unrelated or not directly relevant to the individual plaintiff’s
claims and re-file the revised amended complaints within ten (10) days of the date of
this Order. Plaintiff is warned that failure to comply with this Order may result in
dismissal of this action for want of prosecution and failure to comply with orders of this
Court. Rule 41(b), Fed. R. Civ. P. See, Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962).
S.D. Ohio Civil Rule 55.1(c).
Accordingly, plaintiff Autrey's July 17, 2013 motion for leave to file an amended
complaint (doc. 22) is GRANTED in part.
For the reasons stated above, doc. 22 in case no. 2:13-cv-00124, doc. 24 in case no.
2:13-cv-00125, doc. 23 in case no. 2:13-cv-00126, doc. 24 in case no. 2:13-cv-00127, doc. 25
in case 2:13-cv-00130, doc. 23 in case no. 2:13-cv-00132, doc. 23 in case 2:13-cv-00133, and
doc. 22 in case 2:13-cv-00134 are also GRANTED in part. Plaintiffs are DIRECTED to
remove all of the allegations concerning other employees that are unrelated or not
directly relevant to the individual plaintiff’s claims and re-file the revised amended
complaints within ten (10) days of the date of this Order.

3

I also note that in many of the related cases, plaintiffs failed to file replies in
support of the motions to amend or provide any substantive argument to defendants’
opposition. In this case, in which plaintiff did file a reply, plaintiff failed to respond to
the majority of defendants’ arguments.
11

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P. and
Eastern Division Order No. 91-3, pt. F., 5 either party may, within ten (10) days after this
Order is filed, file and serve on the opposing party a motion for reconsideration by the
District Judge. The motion must specifically designate the order, or part thereof, in
question and the basis for any objection thereto. The District Judge, upon consideration
of the motion, shall set aside any part of this Order found to be clearly erroneous or
contrary to law.

s/Mark R. Abel
United States Magistrate Judge

12