Vandine v. Trinity Health System
Filing
27
OPINION AND ORDER denying 8 Motion to Dismiss for Failure to State a Claim; granting 15 Motion to Amend/Correct; granting 19 Motion to Amend/Correct. Signed by Judge James L Graham on 9/8/2015. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michelle Vandine,
Plaintiff,
v.
Case No. 2:14-cv-1242
Trinity Health System,
Defendant.
OPINION AND ORDER
This is an action brought pursuant to the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. §626, et seq., and Ohio Rev.
Code §4112.14(B) by plaintiff Michelle Vandine against defendant
Trinity Health System, her former employer. Plaintiff alleges that
defendant discriminated against her by terminating her employment
because of her age.
This matter is before the court for a ruling
on defendant’s December 15, 2014, motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b) for failure to state a claim upon
which relief may be granted, plaintiff’s February 4, 2015, motion
for leave to file an amended complaint, and plaintiff’s July 9,
2015,
motion
complaint.
for
leave
to
amend
the
proposed
first
amended
The court will first address the motions to amend.
I. Motions to Amend the Complaint
A. First Motion to Amend
The amendment of a complaint is governed by Fed. R. Civ. P.
15(a)(2).
A “district court, generally speaking, has considerable
discretion in deciding whether to grant” a Rule 15(a)(2) motion to
amend.
Leisure Caviar, LLC v. United States Fish and Wildlife
Serv., 616 F.3d 612, 615 (6th Cir. 2010).
“A motion to amend a
complaint should be denied if the amendment is brought in bad
faith, for dilatory purposes, results in undue delay or prejudice
to the opposing party, or would be futile.”
Colvin v. Caruso, 605
F.3d 282, 294 (6th Cir. 2010)(quoting Crawford v. Roane, 53 F.3d
750, 753 (6th Cir. 1995)). However, Rule 15 states that the “court
should freely give leave when justice so requires.” Rule 15(a)(2);
see also Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff’s February 4, 2015, motion to amend her complaint
was timely filed. The proposed amendments to paragraphs 20 through
23 of the complaint provide the names and approximate ages of the
employees who allegedly assumed plaintiff’s duties following her
termination.
Amended paragraphs 21 and 22 allege that defendant
retained other substantially younger individuals, whose names
plaintiff
did
not
responsibilities.
know,
to
perform
plaintiff’s
duties
and
The proposed amendment does not add additional
claims or parties, but rather supplies additional information
concerning plaintiff’s original age discrimination claim which was
already within defendant’s knowledge.
Thus, defendant has not
shown how it would be prejudiced by the amendment.
Defendant
argues that the proposed amended complaint fails to state a claim
for age discrimination, and that amendment should be denied as
futile.
For the reasons stated below in ruling on defendant’s
motion to dismiss, the court finds that the proposed amendment
would not be completely futile.
Plaintiff’s motion for leave to
file her first amended complaint is granted.
B. Second Motion to Amend
On July 9, 2015, while the first motion to amend was still
pending, plaintiff moved for leave to amend her proposed amended
complaint.
Plaintiff sought to further amend paragraph 19 to
2
state: “In terminating Ms. Vandine, Defendant was able to retain
substantially
younger
Radiologic
Technologists,
and
Defendant
admits that it replaced Ms. Vandine with Donna Kearns, date of
birth 1977.”
Doc. 19-1, p. 3.
Defendant opposes this amendment,
noting that May 31, 2015, was the deadline for filing motions to
amend established by the magistrate judge’s preliminary pretrial
order.
See Doc. 16.
Where the deadline specified in a scheduling order for filing
a motion to amend the pleadings has passed, the plaintiff must show
good cause for the failure to move to amend the complaint within
the
prescribed
time
frame.
Thomas
v.
Tennessee
Dep’t
of
Transportation, 579 F.App’x 331, 333 (6th Cir. 2014). Fed. R. Civ.
P. 16(b)(4) states that a “schedule may be modified only for good
cause and with the judge’s consent.”
Rule 16(b)(4).
The primary
focus of Rule 16's “good cause” standard is the moving party’s
diligence
in
attempting
to
meet
the
case
management
order’s
requirements. Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.
2002). Another relevant consideration is possible prejudice to the
party opposing the modification.
Id. at 625.
Plaintiff claims that she had good cause for not requesting
leave to further amend her proposed first amended complaint until
after the deadline because defendant did not disclose the identity
of plaintiff’s replacement in its initial disclosures made on April
30, 2015.
Although defendant argues that plaintiff was not
diligent in serving her discovery requests, defendant’s initial
disclosures were served on April 30, 2015, the deadline established
by the pretrial order, and plaintiff’s interrogatories and document
requests were served on May 6, 2015, less than one week later.
3
Defendant notes that its response to plaintiff’s discovery requests
was not due until June 5, 2015, which was after the May 31, 2015,
deadline for filing motions to amend the pleadings.
Plaintiff has
submitted an e-mail from defendant’s counsel showing that defendant
did not respond to her interrogatories until June 22, 2015, fortyseven days after they were served.
This court finds that plaintiff has shown good cause for
failing to comply with the scheduling order’s deadline.
This is
not a case where the moving party knew about the information
contained in the proposed amendment prior to the scheduling order’s
deadline, yet failed, without explanation, to move to amend the
complaint before the deadline.
See Thomas, 579 F.App’x at 334
(upholding denial of leave to amend where plaintiff knew identity
of individual defendants before deadline); Ross v. American Red
Cross, 567 F.App’x 296, 306 (6th Cir. 2014)(district court noted
that proposed amendments were not based “on any newly discovered
facts”);
Leary
v.
Daeschner,
349
F.3d
888,
908
(6th
Cir.
2003)(observing that plaintiffs offered no excuse for their delay
in seeking monetary damages, and were “aware of the basis of the
claim for many months”).
Rather, the information was provided to
plaintiff in discovery after the deadline for moving to amend the
pleadings had passed.
The mere fact that defendant was not
required in this case to provide discovery until after the deadline
for motions to amend is not sufficient to preclude a finding of
good cause.
Such a ruling would encourage defendants to delay
providing discovery as long as possible, thereby frustrating the
discovery rules’ purpose of expediting discovery.
In addition,
defendant has not shown how it would be prejudiced by an amendment
4
to the complaint which simply adds information previously within
defendant’s knowledge and possession.
The motion for leave to
amend the proposed first amended complaint is granted.
II. Motion to Dismiss
A. Standards
In ruling on a motion to dismiss under Rule 12(b)(6), the
court must construe the complaint in a light most favorable to the
plaintiff, accept all well-pleaded allegations in the complaint as
true, and determine whether plaintiff undoubtedly can prove no set
of facts in support of those allegations that would entitle her to
relief.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.
Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008);
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). While the
complaint
need
not
contain
detailed
factual
allegations,
the
“[f]actual allegations must be enough to raise the claimed right to
relief
above
the
speculative
level,”
Bell
Atlantic
Corp.
v.
Twombly, 550 U.S. 544, 555 (2007), and must create a reasonable
expectation that discovery will reveal evidence to support the
claim.
Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776,
780 (6th Cir. 2007).
A complaint must contain facts sufficient to
“state a claim to relief that is plausible on its face.”
550 U.S. at 570.
Twombly,
“The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. 662, 678 (2009).
Ashcroft v.
Plaintiff must provide “more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
555.
5
Twombly, 550 U.S. at
B. Elements of Plaintiff’s Age Discrimination Claims
The ADEA prohibits an employer from discharging an individual
“because of such individual’s age.”
29 U.S.C. §623(a)(1).
Ohio
Rev. Code §4112.14(A) provides that no employer shall “discharge
without
just
cause
any
employee
aged
forty
or
older
who
is
physically able to perform the duties and otherwise meets the
established
requirements
of
the
job.”
§4112.14(A).
Age
discrimination claims under the Ohio statute are analyzed under the
same standards as federal claims brought under the ADEA.
Blizzard
v. Marion Technical College 698 F.3d 275, 283 (6th Cir. 2012);
Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807, 808
(1983).
A plaintiff may establish a violation of the ADEA through the
use of direct or circumstantial evidence.
F.3d 622, 632 (6th Cir. 2012).
Yeschick v. Mineta, 675
Cases based on circumstantial
evidence are based on the framework announced in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie
case of age discrimination, plaintiff must show: (1) membership in
a protected group (workers age forty and older); (2) qualification
for the job in question; (3) an adverse employment action; and (4)
circumstances
that
support
an
inference
of
discrimination.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002).
Plaintiff
may satisfy the fourth element by showing that she was replaced by
a significantly younger person, Grosjean v. First Energy Corp., 349
F.3d 332, 335 (6th Cir. 2003), or that similarly situated employees
outside of the protected class were treated more favorably, Coomer
v. Bethesda Hospital, Inc., 370 F.3d 499, 511 (6th Cir. 2004).
If plaintiff establishes a prima facie case, the burden shifts
6
to the defendant to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.
Yeschick, 675 F.3d at 632.
If the employer meets this burden, then plaintiff must rebut the
proffered reason by showing that it was a pretext intended to mask
discrimination.
Id.
Plaintiff can show pretext by proving: (1)
that the proffered reasons had no basis in fact, (2) that the
proffered reasons did not actually motivate her discharge, or (3)
that they were insufficient to motivate discharge.
F.3d at 285.
plaintiff
to
Blizzard, 698
Ultimately, the burden of persuasion is on the
show
that
“age
employer’s adverse action.”
was
the
‘but-for’
cause
of
the
Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009).
Plaintiff correctly notes that she is not required to plead
the elements of a prima facie case in her complaint, as the prima
facie case is an evidentiary standard, not a pleading requirement.
Swierkiewicz, 534 U.S. at 510.
In Swierkiewicz, the Supreme Court
held that ordinary rules of notice pleading apply, and upheld the
complaint because it gave “fair notice” of the basis of the
plaintiff’s claims.
Id. at 514.
Twombly and Iqbal discussed the
“plausibility” standard applicable to Rule 12(b)(6) motions to
dismiss.
Under this standard, although the complaint “need not
present ‘detailed factual allegations,’ it must allege sufficient
‘factual content’ from which a court, informed by its ‘judicial
experience
and
common
sense,’
could
‘draw
the
reasonable
inference,’” that the defendant discriminated against the plaintiff
with respect to terms, conditions or privileges of employment
because of her age.
Keys v. Humana, Inc., 684 F.3d 605, 610 (6th
Cir. 2012)(quoting Iqbal, 556 U.S. at 678, 679).
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However, even
after Twombly and Iqbal, the Sixth Circuit continues to recognize
the viability of Swierkiewicz and notice pleading under Fed. R.
Civ. P. 8(a)(2), which requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Crowder v. Railcrew Xpress, 557 F.App’x 487, 492-3 (6th Cir. 2014);
see also Keys, 684 F.3d at 609 (noting that it would be inaccurate
to read Twombly and Iqbal so narrowly as to be the death of notice
pleading, and recognizing the continuing viability of the “short
and plain” language of Rule 8 in a discrimination action).
Although a plaintiff is not required to plead all of the
elements of a McDonnell Douglas prima facie case, courts have held
that
a
plaintiff
who
does
so
can
satisfy
the
plausibility
requirement by pleading facts sufficient to support the elements of
a prima facie case.
See Littlejohn v. City of New York,
F.3d
, 2015 WL 4604250 at *6-9 (2d Cir. 2015)(complaint was sufficient
where plaintiff pleaded facts supporting McDonnell Douglas elements
of prima facie case of discrimination); Sheppard v. David Evans and
Assoc., 694 F.3d 1045, 1050 n. 2 (9th Cir. 2012)(although not
required to do so, where an ADEA plaintiff does plead a plausible
prima
facie
case
of
discrimination,
the
complaint
will
be
sufficient to survive a motion to dismiss); Swanson v. Citibank,
N.A., 614 F.3d 400, 405-06 (7th Cir. 2010)(plaintiff may meet
plausibility standard by pleading facts supporting a prima facie
case of discrimination).
C. Plaintiff’s Amended Complaint
The
amended
complaint
in
the
instant
plaintiff was born on December 10, 1961.
case
alleges
that
Amended Complaint, ¶ 1.
This information is sufficient to allege that plaintiff is over
8
forty years of age and a member of the protected class.
Plaintiff
alleged that she was fully qualified for her position, that she had
been employed by defendant as a radiologic technologist for over 23
years, and that she earned satisfactory to excellent performance
ratings throughout her tenure.
Amended Complaint, ¶¶ 4-6.
These
factual allegations are sufficient to allege that plaintiff was
qualified
for
her
position.
Plaintiff
further
alleges
that
defendant terminated her employment effective December 7, 2012,
which is sufficient to plead an adverse employment action.1
Amended Complaint, ¶ 7.
The fourth element of an ADEA claim requires circumstances
that support an inference of discrimination.
Plaintiff alleges
that defendant claims to have terminated her for failing to
identify a patient who received an x-ray.
Amended Complaint, ¶8.
Plaintiff alleges that the patient in question was assigned to a
co-worker, that plaintiff only accompanied the co-worker in case
assistance was needed in lifting the patient, and that plaintiff
was never in possession of the x-ray order or the means of
identifying the patient.
Amended Complaint, ¶¶ 10-11, 13.
Plaintiff alleged that defendant knew that only the co-worker
entered the patient’s information into the computer after the
procedure.
Amended Complaint, ¶ 15.
Plaintiff further alleged
that under defendant’s policies, it was the responsibility of the
1
The termination of plaintiff’s employment is the only adverse
employment action identified in plaintiff’s complaint. Although
plaintiff alleges that defendant treated Ashley Matthews and Aaron
Straney, employees in their twenties, more favorably than plaintiff
“under the specific terms of Defendant’s employee handbook
governing disciplinary action[,]” Amended Complaint, ¶ 20, there
are no specific factual allegations relating to any other type of
discipline imposed upon plaintiff.
9
co-worker to identify the patient before the procedure, and that
defendant’s
policies
did
not
place
upon
plaintiff
the
responsibility for identifying the co-worker’s patient or checking
the co-worker’s work.
Amended Complaint, ¶¶ 12, 14, 16.
Defendant characterizes these allegations as being nothing
more than an expression of plaintiff’s disagreement with the
decision to terminate her. However, these allegations do more than
express plaintiff’s opinion that defendant’s decision to terminate
her
was
unjustified.
Plaintiff
has
alleged
facts
regarding
defendant’s employment policies which could support an inference of
pretext.
See Blizzard, 698 F.23d at 286.
If, as plaintiff
alleges, defendant’s policies did not require her to identify a coworker’s patient, it could reasonably be inferred that her failure
to
do
so
did
not
actually
motivate
insufficient to motivate her discharge.
her
discharge
or
was
These factual allegations
constitute circumstances that support a plausible inference of
discrimination.
Plaintiff may also satisfy the fourth element of her ADEA
claim by showing that she was replaced by a significantly younger
person.
Grosjean, 349 F.3d at 335.
A plaintiff is not replaced
when another employee is assigned to perform the plaintiff’s duties
in addition to other duties, or when the work is redistributed
among other existing employees already performing related work.
Id. at 336.
A person is replaced only when another employee is
hired or reassigned to perform the plaintiff’s duties.
Id.
Although the allegations that plaintiff’s duties were assumed by
Donna Hart and Dennis McDaniels, Amended Complaint ¶ 20, are not
sufficient to allege that plaintiff was replaced by them, plaintiff
10
also alleged that “upon information and belief, subsequent to
Plaintiff’s
termination
Defendant
hired
substantially
younger
individuals to perform Plaintiff’s duties and responsibilities.”
Amended Complaint, ¶ 22.
After the information was provided by
defendant in discovery, plaintiff moved to amend ¶ 19 of the
Amended Complaint to state that “Defendant admits that it replaced
Ms.
Vandine
with
Donna
Kearns,
date
of
birth
1977.”
Age
differences of ten or more years have generally been held to be
sufficiently substantial to meet the requirement of the fourth part
of the age discrimination prima facie case. Id.
Because Kearns is
alleged to be a substantially younger person (over ten years
younger than plaintiff, who was born in 1961), this statement is
sufficient to support a plausible inference of discrimination. See
Blizzard, 698 F.3d at 283 (allegation that the plaintiff was
replaced by a significantly younger worker is sufficient to support
an inference of discrimination).
An inference of discrimination may also be drawn from facts
showing that similarly situated employees outside of the protected
class were treated more favorably.
Coomer, 370 F.3d at 511.
Plaintiff alleges that Matthews and Straney, employees in their
twenties,
were
treated
more
favorably
under
the
defendant’s employee handbook governing termination.
Complaint,
§
20.
However,
the
complaint
contains
terms
of
Amended
no
facts
demonstrating that these employees were similarly situated to
plaintiff.
To be “similarly situated,” the other employees must
have dealt with the same supervisor, have been subject to the same
standards, and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish
11
their conduct or the defendant’s treatment of them for it.
Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Although plaintiff is only required to show that her situation was
comparable to that of the other employees in all factors relevant
to the factual context, as opposed to similarity in all respects,
see Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352
(6th Cir. 1998), the complaint provides no information concerning
these other employees or how they were similarly situated to or
treated more favorably than plaintiff.
Thus, the complaint fails
to plead a discrimination claim based on a disparate treatment
theory.
However,
this
failure
does
not
warrant
granting
defendant’s motion to dismiss because, as discussed above, the
complaint otherwise pleads sufficient facts to give rise to a
plausible
inference
that
defendant
was
motivated
by
age
discrimination in terminating plaintiff’s employment.
The court finds that the amended complaint contains facts
sufficient
to
give
defendant
“fair
notice”
of
the
basis
of
plaintiff’s claims, Swierkiewicz, 534 U.S. at 514, and to “state a
claim to relief that is plausible on its face.”
at 570.
Twombly, 550 U.S.
Defendant’s motion to dismiss is not well taken.
III. Conclusion
In accordance with the foregoing, plaintiff’s motion to amend
her complaint (Doc. 15) and her motion to amend her proposed first
amended complaint (Doc. 19) are granted.
The motion to dismiss
(Doc. 8) is denied.
Date: September 8, 2015
s/James L. Graham
James L. Graham
United States District Judge
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