O'Connor v. Nationwide Children's Hospital
Filing
10
OPINION AND ORDER granting in part and denying in part 3 Motion to Dismiss for Failure to State a Claim. The parties shall contact Magistrate Judge Deavers' chambers to establish a pretrial schedule and to schedule a settlement conference. Signed by Judge George C. Smith on 11/9/2016. (kk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIN O’CONNOR,
Plaintiff,
Case No. 2:16-cv-357
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers
v.
NATIONWIDE CHILDREN’S HOSPITAL,
Defendant.
OPINION AND ORDER
Plaintiff Erin O’Connor brings this action against Defendant Nationwide Children’s
Hospital alleging four claims: 1) wrongful termination; 2) violation of the Family and Medical
Leave Act, 29 U.S.C. §2601, et seq. (“FMLA”); 3) a battery claim; and 4) a products liability
claim.
This matter is before the Court on Defendant’s Motion to Dismiss all of Plaintiff’s
claims against them (Doc. 3). The motion is fully briefed and ripe for review. For the reasons
that follow, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion to
Dismiss.
I.
BACKGROUND
Defendant Nationwide Children’s Hospital (“Nationwide Children’s”) is a hospital
located in Columbus, Ohio, that is subject to the requirements of the Family and Medical Leave
Act (“FMLA”). Plaintiff, Erin O’Connor, is a 26 year-old female who was employed as a
preoperative technician with Nationwide Children’s. Plaintiff began her employment in January
of 2014, and was terminated effective November 16, 2015. (Doc. 8, Compl. ¶¶ 1–4). As a
preoperative technician, Plaintiff’s duties included: assisting hospital staff with the transport of
patients, setting up medical care equipment, maintenance of surgical equipment, and supporting
administration of anesthesia to patients. (Doc. 8, Compl. ¶ 1).
On March 19, 2015, Plaintiff was at work at Nationwide Children’s and suffered an
injury to her shoulder when “a defective freight elevator door” shut on her. (Doc. 8, Compl. ¶
6). Plaintiff alleges that “the Defendant was aware [the elevator] was causing serious physical
injuries to its employees by suddenly slamming against them when entering or leaving the
elevator.” (Id.). Plaintiff placed Nationwide Children’s on notice of the cause of her injury in an
FRO-1 report dated March 20, 2015. (Id. at ¶ 8).
As a full-time employee, Plaintiff was entitled to benefits under the FMLA. She alleges
that “Defendant knowing the Plaintiff was required to be given FMLA leave for a serious health
condition delayed treatment and contested the Plaintiff’s workers’ compensation claim for her
shoulder injury.” (Id. at ¶ 9). Plaintiff filed a workers’ compensation claim following her
shoulder injury and the claim was denied by Defendant on March 30, 215, asserting the claim
was “under investigation.” (Id. at ¶ 10). Plaintiff’s injury was later deemed valid as reported on
an FRO-1 dated April 2, 2015, stating Plaintiff had a “crush injury, right shoulder.” (Id. at ¶ 11).
Plaintiff alleges that she was unable to return to work within the next six months because
of Defendant’s conduct in refusing to pay for or provide medical care to her. On September 9,
2015, Plaintiff was placed on contingent employee status, following the FMLA leave. (Doc. 8,
Compl. ¶ 12). Plaintiff asserts that “[c]ontingent status at NCH is the functional equivalent in
practice of effecting a constructive discharge from employment on 9 SEP 2015.” (Id. at ¶ 14).
Plaintiff describes that she was placed on this status “immediately before she was to receive
corrective surgery allowing her to return to work, surgery that she paid for out of her own
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pocket.” (Id. at ¶ 14). Nationwide Children’s terminated “Plaintiff’s employment with a letter
so advising her and dated 16 NOV 2015.” (Id. at ¶ 4).
II. STANDARD OF REVIEW
Defendant brings this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted.
Under the Federal Rules of Civil Procedure, any pleading that states a claim for relief
must contain a “short and plain statement of the claim” showing that the pleader is entitled to
such relief. Fed. R. Civ. P. 8(a)(2). To meet this standard, a party must allege sufficient facts to
state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A claim will be considered “plausible on its face” when a plaintiff sets forth “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).
Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the
foregoing standards. In considering whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d
829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).
However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to
threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading
must still contain facts sufficient to “provide a plausible basis for the claims in the complaint”; a
recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes,
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Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at
679.
III.
DISCUSSION
Defendant Nationwide Children’s has moved to dismiss all of Plaintiff’s claims against
them. The Court will address each of Plaintiff’s four claims in turn.
A.
Wrongful Discharge in Violation of Public Policy
Plaintiff alleges that she was wrongfully terminated as retaliation for complaining to
Nationwide Children’s about the unsafe workplace, in violation of the public policy of Ohio.
Defendant argues that Plaintiff’s claim for wrongful termination must be dismissed because she
has failed to plead the elements required for a wrongful discharge claim under Ohio law.
Specifically, Defendant asserts that Plaintiff failed to identify a clear public policy contained in
any constitution, statute, regulation, or common law to serve as the basis for her claim.
In Greeley v. Miami Valley Maintenance Contractors, Inc., the Supreme Court of Ohio
created an exception to the common-law employment-at-will doctrine historically followed in
Ohio. 49 Ohio St. 3d 228, 235 (1990) (“In Ohio, a cause of action for wrongful discharge in
violation of public policy may be brought in tort.”). As noted in Painter v. Graley, “a finding of
‘sufficiently clear public policy’ is only the first step in establishing a right to recover for the tort
of wrongful discharge in violation of public policy.” 70 Ohio St. 3d 377, 384 (1994). The
elements of a claim for wrongful discharge in violation of public policy are:
1.
That clear public policy existed and was manifested in a state or federal
constitution, statute, or administrative regulation, or in the common law
(the clarity element).
2.
That dismissing employees under circumstances like those involved in the
plaintiff’s dismissal would jeopardize the public policy (the jeopardy
element).
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3.
The plaintiff’s dismissal was motivated by conduct related to the public
policy (the causation element).
4.
The employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).
Dohme v. Eurand Am., Inc., 130 Ohio St. 3d 168, 171 (2011) (citing Painter, 70 Ohio St. 3d at
384).
Defendant argues that general references to workplace safety and applicable cases like
Kulch v. Structural Fibers, 78 Ohio St. 3d 134 (1997) and Pytlinski v. Brocar Prods., Inc., 94
Ohio St. 3d 77 (2002), are not an articulation of clear public policy sufficient to maintain a claim
for wrongful discharge. Plaintiff’s Complaint states that:
An employer in Ohio may not terminate an employee for making complaints
about workplace safety and suffering injuries because of it. Kulch v. Structural
Fibers, 78 Ohio St 3d 134, 152 (1997) (terminating an employee who complains
about safety is an affront to the public policy of Ohio); Pytlinski v. Brocar Prods.,
Inc., 94 Ohio St. 3d 77 (2002) (Ohio public policy favoring workplace safety was
an independent basis upon which a cause of action for wrongful discharge in
violation of public policy may be prosecuted. Retaliatory discharges for making
complaints about workplace safety and seeking to enforce workplace safety under
Ohio and federal common law and numerous statutes are affront to Ohio public
policy); Langley v. DaimerlerChrysler Corp., 407 F.Supp.2d 897, 909 (ND Ohio
2005) (workplace safety is sufficiently clear public policy to base retaliatory
wrongful termination in violation of public policy claim upon); Jenkins v. Central
Transport, Inc., 1:09 CV 525 (ND Ohio 1-19-2010) (same).
(Doc. 8, Compl. ¶ 20).
Although the aforementioned allegation is general, Plaintiff does reference more than just
the cases and actually describes the applicable law of the cases. Specifically, with respect to the
aforementioned cases, terminating an employee that has complained of unsafe work conditions
violates public policy. Further, wrongful discharge in violation of public policy is not a claim
that requires the plaintiff to meet a heightened pleading standard. Therefore, Plaintiff’s
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allegations are sufficient at this stage of the proceedings to establish the clarity element of a
claim for wrongful discharge in violation of public policy.
Defendant also argues that Plaintiff has failed to allege any facts demonstrating that
discharging employees under circumstances like those involved in her own discharge would
jeopardize that clear public policy (the jeopardy element). Defendant asserts that wrongful
discharge claims based on reports of workplace injuries do not meet the jeopardy element
because Ohio Revised Code § 4123.90 “provides the exclusive remedy for employees claiming
termination in violation of rights conferred by the Workers’ Compensation Act.” See McDonald
v. Mt. Perry Foods, Inc., Case No. 2:09-cv-779, 2011 U.S. Dist. LEXIS 84598, *52–53 (S.D.
Ohio Aug. 2, 2011) (Marbley, J.) (quoting Bickers v. W. & S. Life Ins. Co., 116 Ohio St. 3d 351,
2007-Ohio-6751, 879 N.E.2d 201 (2007)). The Court agrees that courts have consistently held
that in light of Bickers, public policy claims based on termination as retaliation for filing a
workers’ compensation claim are barred.
Subsequent to Bickers, the Supreme Court of Ohio held that a claim for wrongful
discharge in violation of public policy may lie “when an injured employee suffers retaliatory
employment action after an injury but before he or she files, institutes, or pursues a workers’
compensation claim.” Sutton v. Tomco Machining Inc., 129 Ohio St. 3d 153, 163, 2011-Ohio2723, 950 N.E.2d 938 (2001). However, this exception does not apply here as Plaintiff filed a
workers’ compensation claim.
The Sixth Circuit has held that the jeopardy element is only met when an employee’s
complaint makes it “clear to [the] employer that [the employee] is invoking a governmental
policy as the basis for [the] complaint, not just [the employee’s] own self-interest.” Jermer v.
Siemens Energy & Automation, Inc., 395 F.3d 655, 659 (6th Cir. 2005). There are no allegations
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in Plaintiff’s Complaint regarding a government policy. Plaintiff’s complaints that allegedly led
to her discharge were that the elevator injured her. Accordingly, Plaintiff cannot satisfy the
jeopardy element and therefore her claim for wrongful discharge in violation of public policy
must be dismissed.
B.
FMLA Interference Claim
Plaintiff alleges that Defendant violated her FMLA rights by placing her on
FMLA leave involuntarily. She described in her response that when she was injured:
she was put on FMLA leave involuntarily (Complaint Par. 23), she was able to
perform work although on light duty, was given light duty, it was then
inexplicably taken from her (Par. 12); and her medical treatment was then delayed
after the Defendant contested responsibility for her injury (Par. 9, 13, 14)
knowing that if her surgery was performed late into the FMLA time off period,
the Defendant could and did use a neutral excuse her FMLA leave time expired to
fire her so as to create a pretext, after the Plaintiff was unable to return to work in
6 months which event could have been avoided had the Defendant not in bad faith
contested the cause of her injury. (Par. 12, 13, 14, 24, 25).
(Doc. 5, Pl.’s Resp. in Opp. at 12).
Defendant argues that Plaintiff has failed to plead that she was forced to take FMLA
leave. Instead, Plaintiff states that “Defendant placed [her] on FMLA leave (29 USC 2601 et
seq) given she met the requirements of FMLA Section 102 (a)(1)(D) to wit: ‘because of a serious
health condition that makes the employee unable to perform the functions of the position of such
employee.’” (Doc. 8, Compl. ¶ 22). She also asserts that “Plaintiff was required to be given
FMLA leave for a serious health condition.” (Id. at ¶ 9).
The FMLA entitles an “eligible employee” to up to twelve weeks of leave per year if he
or she has a “serious health condition” that prevents the employee from performing the functions
of his or her job. 29 U.S.C. § 2612(a)(1)(D); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th
Cir. 2005). In order to maintain an interference claim under the FMLA, Plaintiff must establish
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that: (1) she was an eligible employee under the FMLA; (2) that Nationwide Children’s is an
employer as defined under the FMLA; (3) that she was entitled to leave under the FMLA; (4)
that she gave notice of her intention to take leave; and (5) that Nationwide Children’s denied
Plaintiff the FMLA benefits to which she was entitled. See Edgar v. JAC Prods., Inc., 443 F.3d
501, 507 (6th Cir. 2006). In assessing an interference claim, “the issue is simply whether the
employer provided its employee the entitlements set forth in the FMLA–for example, a twelveweek leave or reinstatement after taking a medical leave.” Id. at 506 (quoting Arban v. West
Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).
Plaintiff’s claim is for involuntary leave, which is a type of FMLA interference claim.
An involuntary-leave claim arises under 29 U.S.C. § 2615(a)(1) when: “an employer forces an
employee to take FMLA leave when the employee does not have a ‘serious health condition’ that
precludes her from working.” Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007).
However, “the employee’s claim ripens only when and if the employee seeks FMLA leave at a
later date, and such leave is not available because the employee was wrongfully forced to use
FMLA leave in the past.” Id.
The allegations in Plaintiff’s Complaint are very sparse with respect to this claim. She
makes a conclusory statement that she was “placed on FMLA involuntarily” and that she “was
not required to accept FMLA leave benefits from NCH and they were bestowed on her to effect
a wrongful termination.” (Doc. 8, Compl. ¶¶ 23, 25). Further, Plaintiff does not specifically
state that she requested FMLA leave at a later date to make this claim ripe, but suggests that she
may have. However, at this stage in the proceedings, Plaintiff has sufficiently alleged that she
was placed on FMLA leave involuntarily in violation of her rights under the FMLA.
Accordingly, Defendant’s Motion to Dismiss Plaintiff’s FMLA claim is denied.
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C.
Battery Claim / Employer Intentional Tort
Plaintiff alleges that she was subject to battery by her employer, Nationwide Children’s,
when “she was struck by the elevator door.” (Doc. 8, Compl. ¶ 27). Defendant argues that
Plaintiff cannot maintain a claim for battery because she has not alleged an affirmative act by
Nationwide Children’s and her claim falls exclusively within the scope of her workers’
compensation claim. The Court agrees with Defendant that Plaintiff alleges that Nationwide
Children’s failed to maintain the elevator, which constitutes an omission, not an affirmative act.
Further, her injury sustained at work should be pursued through workers’ compensation.
Plaintiff also alleges that Nationwide Children’s “conduct amounts to an employer
intentional tort compensable outside of the workers’ compensation system.” (Id.). Defendant
argues that Plaintiff has failed to plead such a claim, and even if she sought leave to amend her
complaint to bring such a claim, it would be futile.
The Supreme Court of Ohio held that
A claim of intentional tort against an employer will be dismissed as failing to
establish that the pleader is entitled to relief unless the complaint alleges facts
showing that the employer: (1) specifically desired to injure the employee; or (2)
knew that the injury to an employee was certain or substantially certain to result
from the employer’s act and, despite this knowledge, still proceeded.
Mitchell v. Lawson Milk Co., 40 Ohio St. 3d 190, 192 532 N.E.2d 753 (1988).
An employee asserting an employer intentional tort claim is subject to a “heightened
standard of review” under a Rule 12(b)(6) motion to dismiss “due to the need to deter the
number of baseless claims against employers, the importance of preventing every workplace
injury from being converted into an intentional tort claim, and the goal of facilitating the
efficient administration of justice.” Byrd v. Faber, 57 Ohio St. 3d 56, 60, 565 N.E.2d 584
(1991). Further, although a plaintiff may use the operative “buzz words” in the complaint, this is
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not sufficient to survive a motion to dismiss. Rather, a plaintiff must “plead the facts with
sufficient particularity to show that the employer intended the injury and that the employer knew
the injury was substantially certain to occur.” Bullis v. Sun Healthcare Group, 2012-Ohio-2112,
¶ 8, No. 2011-CA-21 (Ohio Ct. App., Miami Cty. May 11, 2012) (holding that the employee’s
allegations that his employer had knowledge of the parking lot hole that caused his injuries, but
failed to correct or warn other employees, did not meet the heightened pleading standard for an
employer intentional tort claim).
Like the Plaintiff in Bullis, Plaintiff has alleged that Nationwide Children’s knew of a
defective condition on its property, the elevator, and did not repair it. Plaintiff alleged that she
“was injured by a defective freight elevator door that the Defendant was aware was causing
serious physical injuries to its employees” and that Nationwide Children’s “intentionally failed
to properly maintain the elevator equipment in a safe condition knowing it had physically injured
a number of employees including the Plaintiff and could not be operated reliably for safety and
acted with deliberate intent to cause an injury to the Plaintiff.” (Doc. 8, Compl. ¶ 6–7).
However, Plaintiff’s use of buzz words like “intentional” and “deliberate intent” are not
sufficient to plead with particularity that Nationwide Children’s intended the injury or knew the
injury was substantially certain to occur. Accordingly, even if Plaintiff had pled an intentional
tort claim under Ohio Revised Code § 2745.01, it would still fail because it is subject to a
heightened standard of review and Plaintiff has failed to plead the facts with sufficient
particularity to establish such a claim.
D.
Products Liability Claim
Plaintiff brings a products liability claim under the theory that Nationwide Children’s
“assumed a dual capacity as an employer and supplier of a product to the [Plaintiff].” (Doc. 8,
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Compl. ¶ 29). Defendant argues that Nationwide Children’s cannot be characterized as both an
employer and supplier under Ohio law and that Plaintiff’s claim is barred by the exclusivity of
the workers’ compensation remedy.
The dual capacity doctrine “is a narrow exception to the general rule of employer
statutory immunity in negligence suits brought by employees.” Stolz v. J & B Steel Erectors, 76
F.Supp. 3d 696, 703 (S.D. Ohio 2014) (Black, J.) (concluding that the dual capacity doctrine was
inapplicable because the plaintiff’s injury was a direct result of his work and not merely
incidental). For the dual capacity doctrine to apply, “there must be an allegation and showing
that the employer occupied two independent and unrelated relationships with the employee, that
at the time of these roles of the employer there were occasioned two different obligations to this
employee, and that the employer had during such time assumed a role other than that of
employer.” Bakonyi v. Ralston Purina Co., 17 Ohio St. 3d 154, 157, 478 N.E.2d 241 (1985)
(holding that the dual capacity doctrine did not apply and plaintiff’s claim was barred by Ohio’s
Workers’ Compensation Act); see also Schump v. Firestone Tire & Rubber Co., 44 Ohio St. 3d
148, 152, 541 N.E.2d 1040 (1989) (the employer must “step outside the boundaries of the
employer-employee relationship, creating separate and distinct duties to the employee; the fact
of injury must be incidental to the employment relationship.”). The dual capacity doctrine does
not apply “where the injuries suffered were incurred during the course of employment as a result
of the employer’s alleged failure to maintain a safe work place.” Stolz, 76 F.Supp. 3d at 703.
Plaintiff relies on Guy v. Arthur H. Thomas Co., 55 Ohio St. 2d 183, 378 N.E.2d 488
(1978), in support of her claim that Nationwide Children’s is both her employer and a supplier of
a faulty product. In Guy, the Supreme Court of Ohio held that a hospital employee could
maintain a medical malpractice action against the hospital notwithstanding the immunity from
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civil liability provided by the workers’ compensation system. The hospital had provided
medical treatment to the employee, therefore assuming another role that was unrelated to its role
as an employer. Id. at syllabus.
Both parties reference Rivers v. Otis Elevator, 2013-Ohio-3917, 996 N.E.2d 1039 (Ohio
Ct. App., 8th Dist. 2013), that involved similar facts to the case at bar and the court ultimately
rejected the application of the dual capacity doctrine. The plaintiff in Rivers worked as a
housekeeper at a hospital and was injured after tripping out of an elevator while at work. The
court held that plaintiff was at the hospital “solely for purposes of work, and she was still ‘on the
clock’ at the time of the accident.” Id. at ¶ 17. The court stated that hospital employees use the
elevator all the time as part of their work. And further concluded that:
There was no evidence that [the hospital] assumed any other persona besides that
of employer with respect to [plaintiff], nor do appellants identify any other role
[the hospital] played other than that of a nondescript ‘non-employer.’ Unlike
Guy, [the hospital] did not assume the traditional role of hospital to treat
[plaintiff] as a patient nor was [plaintiff] a visitor of the hospital. The undisputed
evidence demonstrates that [plaintiff’s] injuries resulted from her ‘employment
use’ of the elevator, and her injuries are ‘predominantly work-related.’
Therefore, the dual-capacity doctrine was inapplicable.
Id.
The Court finds Plaintiff has failed to plead sufficient facts to maintain a claim based on
the dual capacity doctrine. Plaintiff has alleged that she suffered the injury while at work, during
the course of her employment. She was using the elevator as part of her employment and
therefore work related. Plaintiff cannot establish that she was at Nationwide Children’s for any
purpose other than work. She was not both an employee and a patient like in Guy. Nor has she
sufficiently plead sufficient facts, aside from mere conclusory statements, to establish how
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Nationwide Children’s had any other duty to her aside from that of employer-employee.
Accordingly, Plaintiff’s products liability claim must be dismissed.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Defendant’s Motion to Dismiss.
The parties shall contact Magistrate Judge Deavers’ chambers to establish a pretrial
schedule and to schedule a settlement conference.
The Clerk shall remove Document 3 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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