Hasting v. First Community Mortgage

Filing 37

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 11/6/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MARIE HASTING,
Plaintiff,
v.
FIRST COMMUNITY MORTGAGE,
Defendant.

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NO. 3:17-cv-00989
JUDGE RICHARDSON

MEMORANDUM OPINION
Pending before the Court is Defendant’s Motion for Judgment on the Pleadings (Doc. No.
21, “Motion”), which seeks dismissal of the fourth cause of action set forth in Plaintiff’s
Complaint. For the reasons stated herein, Defendant’s Motion is GRANTED.
Plaintiff, Marie Hasting, asserts employment discrimination claims against Defendant First
Community Mortgage, pursuant to Title VII (42 U.S.C. § 2000e, et seq.) and the Equal Pay Act
(29 U.S.C. § 206). She asserts, in a total of four causes of action, three different theories of liability
under Title VII and a claim under the Equal Pay Act. She seeks, among other things, compensatory
and punitive damages, backpay and a judgment declaring Defendant’s acts and practices to be in
violation of Title VII and the Equal Pay Act. 1 Defendant has moved for judgment on the pleadings
as to Plaintiff’s Equal Pay Act claim, styled as Plaintiff’s “Fourth Cause of Action.” 2

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Despite requesting such declaratory relief, Plaintiff has not included any allegations purporting
to explain, even in conclusory fashion, why declaratory relief is appropriate or even authorized in
this case under the Declaratory Judgments Act, 28 U.S.C. § 2201 et seq.
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Defendant has not moved for judgment on the pleadings with respect to any of the three Title VII
claims, and therefore all three survive Defendant’s Motion.

SUMMARY OF CAUSE OF ACTION UNDER THE EQUAL PAY ACT
The Equal Pay Act prohibits employers from paying an employee at a rate less than that
paid to employees of the opposite sex for equal work. 29 U.S.C. § 206(d)(1). To establish a case
of wage discrimination under the Equal Pay Act, a plaintiff must show that an employer pays
different wages to employees of opposite sexes for equal work on jobs, the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar working
conditions. Schleicher v. Preferred Solutions, Inc. 831 F.3d 746 (6th Cir. 2016).
Plaintiff’s Complaint alleges that Defendant paid wages to female employees at a rate less
than the rate at which they paid wages to male employees for equal work on jobs the performance
of which required equal skill, effort, and responsibility. Defendant asserts that Plaintiff has failed
specifically to allege, however, that she was paid less than similarly-situated male employees of
the same skill and responsibility. Plaintiff alleges that, as Human Resources Manager for
Defendant, she discovered a disparity in salaries related to gender. She claims that the only woman,
other than herself, in executive management was paid at a significantly lower wage than her male
counterparts. She asserts that Defendant generally discriminated between female employees and
male employees in the wages paid for equal work.
LEGAL STANDARD
I.

APPLICABLE STANDARD FOR THIS MOTION FOR JUDGMENT ON THE
PLEADINGS: THE SAME STANDARD THAT GOVERNS MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM UNDER FED. R. CIV. P. 12(b)(6).
The Federal Rules of Civil Procedure provide that after the pleadings are closed, but within

such time as not to delay the trial, any party may move for judgment on the pleadings. Fed. R.
Civ. P. 12(c). “Rule 12(c) may be employed as a vehicle for raising several of the defenses
enumerated in Rule 12(b), including the defense of failure to state a claim upon which relief may

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be granted.” Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979). See also
Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989) (citing Amersbach); Becker v.
Crounce Corp., 822 F. Supp. 386, 391 n.4 (W.D. Ky. 1993) (citing Amersbach).
When that defense is raised via a motion for judgment on the pleadings, the district court
evaluates the motion using the same standard applied to a motion to dismiss for failure to state a
claim under Rule 12(b)(6). See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437
n.1 (6th Cir. 1988); Becker, 822 F. Supp. at 391 n.4 (W.D. Ky. 1993) (citing Amersbach); Kinney
v. Mohr, No. 2:13-cv-1229, 2017 WL 1395623, *4 (S.D. Ohio Apr. 19, 2017) (citing Amersbach).
“Thus, the same rules which apply to judging the sufficiency of the pleadings apply to a Rule 12(c)
motion as to a motion filed under Rule 12(b)(6)[.]” Lacy v. Ohio Dept. of Job and Family Servs.,
No. 2:16-cv-912, 2017 WL 1397522, *1 (S.D. Ohio Apr. 19, 2017) (citing Amersbach). 3 Indeed,
when a Rule 12(c) motion is based on an asserted failure to state claim upon which relief can be
granted, “’[t]he only different between Rule 12(c) and Rule 12(b)(6) is the timing of the motion to
dismiss.’” Ruppe v. Knox Cty. Bd. Of Educ., 993 F. Supp.2d 807, 809 (E.D. Tenn. 2014) (quoting
Hunter v. Ohio Veterans Home, 272 F. Supp. 2d 692, 694 (N.D. Ohio 2003)). In summary, as both
parties appear to recognize, the applicable standard for this Motion is the standard for motions
under Rule 12(b)(6).
II.

STANDARD UNDER RULE 12(b)(6): TWOMBLY, IQBAL AND THEIR PROGENY.
As both parties recognize, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and its progeny provide

the applicable standard for motions to dismiss for failure to state a claim under Rule 12(b)(6). For

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The same is true on appeal; in reviewing a district court’s decision on this kind of motion for
judgment on the pleadings pursuant to Rule 12(c), the Sixth Circuit uses the same standard of
review (de novo) that it uses in reviewing a district court’s decision on a motion to dismiss under
Rule 12(b)(6). See Hayward v. Cleveland Clinic Foundation, 759 F.3d 601, 608 (6th Cir. 2014).
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purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint
as true. Id. at 678. 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. 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. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When
there are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including
one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are
mere recitations of the elements of a cause of action sufficient. Id. at 678; Fritz v. Charter
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); Abriq v. Hall, 295 F. Supp. 3d 874, 877
(M.D. Tenn. 2018) (citing Fritz). Moreover, factual allegations that are merely consistent with the
defendant’s liability do not satisfy the claimant’s burden, as mere consistency does not establish
plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S. at
678.
In determining whether a complaint is sufficient under the standards of Iqbal and its
predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may
be appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not
entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. Identifying and setting aside such
allegations is crucial, because they simply do not count toward the plaintiff’s goal of showing
plausibility of entitlement to relief. As suggested above, such allegations include “bare assertions,”
formulaic recitation of the elements, and “conclusory” or “bald” allegations. Id. at 681. The
question is whether the remaining allegations – factual allegations, i.e., allegations of factual

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matter – plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard
of Fed. R. Civ. P. 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.
As a general rule, matters outside the pleadings may not be considered in ruling on a motion
to dismiss under Fed. R. Civ. P. 12(b)(6) unless the motion is converted to one for summary
judgment under Rule 56. Fed. R. Civ. P. 12(d).
ANALYSIS
I.

THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED UNDER THE EQUAL PAY ACT.
As this Court has stated with respect to the Equal Pay Act:
In this Circuit, “‘three elements must be shown to make out a claim under the Act:
(1) that [plaintiff's] employer is subject to the Act; (2) that [plaintiff] performed
work in a position requiring equal skill, effort, and responsibility under similar
working conditions; and (3) that [plaintiff] was paid less than the employees of the
opposite sex providing the basis of comparison’

Wong-Opasum v. Middle Tennessee State Univ., No. 3:04-0719, 2006 WL 208881, at *3 (M.D.
Tenn. Jan. 24, 2006) (quoting EEOC v. City Council of City of Cleveland, No. 88-3726, 1989 WL
54252, at *4 (6th Cir.1989) (citing Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th
Cir.1987))).
Both Wong-Opasum and City Council of City of Cleveland are clear: to have a valid claim
under the Equal Pay Act, the plaintiff must be paid less than the relevant employees of the opposite
sex. 4 Accordingly, Plaintiff here must make the factual allegation that she was paid less than the
relevant male employees, or else her claim fails to plausibly suggest an entitlement to relief as
required to survive the Motion. See Iqbal, 556 U.S. at 681.

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To be sure, City Council of Cleveland is an unreported and relatively old case. However, its
soundness on Equal Pay Act issues appears not to be in question. It has been cited in several cases
since Wong-Opasum was decided in 2006, e.g., Kline v. Portage Cty. Bd. Of Comm’rs ,5 F. Supp.
3d 902, 921 (N.D. Ohio 2014), and has been cited as recently as 2015.
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Defendant argues that Plaintiff made no such allegation in her complaint. In particular, the
Defendant argues essentially that Plaintiff’s allegations as to sex-based pay discrimination: (1) are
the sort of conclusory ones that are to be disregarded in addressing the sufficiency of the complaint;
and in any event (2) relate only to whether other women were paid less than the relevant male
employees. Defendant is correct that Plaintiff relies largely (1) on conclusory allegations that count
for nothing in the Court’s resolution of the Motion; and (2) allegations (largely conclusory, as just
noted) relating to gender-based pay discrimination against women other than herself.
However, Defendant exaggerates when, after pointing to specific (though conclusory)
alleged facts set forth in four bullet points—none of which has anything to do with the pay of
Plaintiff specifically rather than female co-employees generally— it claims that these are “[t]he
only facts arguably pleaded in Plaintiff’s Complaint related to her Equal Pay Act” and that
“Plaintiff has alleged no other facts to support a claim under the Equal Pay Act.” (Doc. No. 22 at
3). The Complaint does at least “arguably” allege other facts “related to” her Equal Pay Act claim,
and some even relate to her pay in particular. Specifically, as she notes in her response in
opposition to the Motion, Plaintiff alleges that: (1) Defendant “changed Plaintiff’s compensation
by taking away her bonus structure making Plaintiff the only Director to be ineligible for a bonus”;
and (2) she was promoted “without [receiving] any change in compensation.” (Doc. No. 25 at 5)
(quoting Complaint ¶ 25 and Complaint ¶ 27, respectively).
Plaintiff thus has alleged that Defendant engaged in action (and inaction) regarding her pay
that was detrimental to her. The question is whether these allegations set forth enough factual
matter—as opposed to the ineffectual conclusory facts, formulaic recitation of the elements, and
the like—to show what she needs to show, i.e., plausibility that Plaintiff was paid less than male
employees who performed equal work under similar working conditions.

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The question must be answered in the negative. In alleging the two above-referenced
alleged compensation decisions, Plaintiff has stopped short of alleging that she was paid less than
the relevant male employees. It is one thing to complain about not receiving a bonus or a raise; it
is quite another to allege (based on these and any other applicable circumstances), as required,
compensation less than the relevant employees of the opposite sex. Here, the required allegation
simply was not made expressly. Nor can the Court even say it was made implicitly; for all the
Court knows, it could be that Plaintiff’s counsel was not seeking even to imply the required facts
because, in advance of discovery, counsel could not in good faith have expressly or even implicitly
alleged that, when all is said and done, she was paid less than the relevant male employees. 5 From
all appearances, Plaintiff’s counsel has intentionally avoided coming right out and alleging this.
The factual allegations regarding these two compensation decisions are certainly consistent
with Defendant’s liability to Plaintiff. However, as noted above, mere consistency does not
establish the required plausibility of such liability. Iqbal, 556 U.S. at 678.
II.

PLAINTIFF’S LATE AND PROCEDURALLY IMPROPER MOTION TO AMEND
THE COMPLAINT IS DENIED.

In addition to opposing the Motion, Plaintiff alternatively sought leave to amend her complaint.
That is, Plaintiff requested that if the Court were to find that her complaint was insufficient in any
manner, she be granted leave to file an amended complaint. (Doc No. 25 at 1, 7). This conditional
request to file an amended complaint is now (but only now) operative because, as discussed above,

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Insisting that she has done enough to survive the Motion, Plaintiff invokes the “fair notice”
standard of Conley v. Gibson, 355 U.S. 41, 47 (1957) and asserts that the Complaint provided
Defendant fair notice of her cause of action. (Doc. No. 25 at 3.) This effort is fruitless, however,
because the notice-pleading concept embraced by Conley was supplanted by Twombly and Iqbal.
See Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629-630 (6th Cir. 2009). Litigants
no longer should “rel[y] on the now defunct Conley standard for motions to dismiss.” Girl Scouts
of Middle Tennessee, Inc. v. Girl Scouts of the U.S.A., 770 F.3d 414, 427 (6th Cir. 2014).
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the Court has found her Complaint deficient for failure to allege that she personally was paid less
than the relevant male employees.
Rule 15(a) of the Federal Rules of Civil Procedure provides that, once a responsive pleading
is filed, a party may amend its pleading only with the opposing party’s consent or the court’s leave.
Fed. R. Civ. P. 15(a)(2). The court should freely give leave to amend when justice so requires. Id.
However, such leave is inappropriate in this case because Plaintiff’s request—even if it would be
substantively meritorious, a proposition the Court does not dispute for present purposes— is late
and procedurally improper.
First, Plaintiff’s request violates the deadline in the Initial Case Management Order for
amending the pleadings. That Order provides: “The parties shall file all Motions to Amend on or
before April 13, 2018.” Doc. No. 16. Plaintiff has not filed a motion to amend the Initial Case
Management Order to extend this deadline and, therefore, her request is too late.
In addition, Plaintiff did not follow the proper procedure for requesting leave to amend.
Plaintiff did not file a motion to amend and accompanying brief. Local Rule 15.01 provides that a
motion to amend must describe the reasons supporting the proposed amendments and the substance
of the amendments sought and include as an appended exhibit the signed proposed amended
pleading. Local Rule 15.01(a)(1). 6 Plaintiff, almost as an afterthought, merely requested in the
conclusion to her opposition brief, that the Court, if it found the Complaint to be insufficient, allow
her leave to amend her complaint. Doc. No. 25 at 7. She did not file an accompanying brief

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In fairness to Plaintiff’s counsel, the Court notes that the Local Rules of Court were amended on
August 14, 2018, to add, among other things, Local Rule 15.01. Plaintiff’s Response to this Motion
was filed on August 28, 2018. Doc. No. 25. Nevertheless, although very new, the amended rules
were in effect at the time Plaintiff made her cursory, and conditional, request to amend her
Complaint on August 28, and they should have been consulted in connection with the request.
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explaining why she should be entitled to amend at this late date or file a proposed amended
complaint so that the Court could review her proposed new allegations.
A bare request in an opposition to a motion to dismiss (or for judgment on the pleadings)
without any indication of the particular grounds on which amendment is sought does not constitute
a motion within the contemplation of Rule 15(a). PR Diamonds, Inc. v. Chandler, 364 F.3d 671,
699 (6th Cir. 2004); see also Begala v. PNC Bank, Ohio, N.A., 214 F.3d 776, 784 (6th Cir. 2000)
(plaintiff filed no proposed amended complaint for the court to consider with the motions to
dismiss, and defendant was entitled to a review of the complaint as filed). In PR Diamonds, Inc.,
the Sixth Circuit noted:
In this case, Plaintiffs failed to follow the proper procedure for requesting leave to
amend. They did not actually file a motion to amend along with an accompanying
brief, as required by the local rules governing practice before the district court.
Instead, they simply included the following request in their brief opposing the
Defendants' motions to dismiss: “Alternatively, in the event the Court grants any
part of the Defendants' motions to dismiss, plaintiffs respectfully request leave to
amend their Complaint.”
PR Diamonds, Inc., 364 F.3d at 699. The circumstances are very similar in the instant case, 7 and
this sort of request to amend a complaint is to be treated with disfavor. Id.
Plaintiff’s alternative request for leave to amend, with no supporting brief or proposed
amended complaint, in effect seeks an advisory opinion from the Court, informing her of any
deficiencies of the Complaint and then giving her an opportunity to cure them. PR Diamonds, 364
F.3d at 699 (quoting Begala, 214 F.3d at 784). But the Court does not issue advisory opinions, and

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Among the other similarities, Plaintiff even uses the same kind of language used by the plaintiffs
in PR Diamonds, Inc., stating, “should this Court find that the Complaint is insufficient in any
manner, Plaintiff requests that leave of Court be grated to permit Plaintiff to amend her complaint.”
(Doc. No. 25 at 7.)
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Plaintiff is not entitled to one. See id. For these reasons, Plaintiff’s request for leave to amend will
be DENIED.
CONCLUSION
The Court is constrained to apply the pleading standards set out by the Supreme Court, as
well as Rule 15 and case law addressing requests for leave to amend. Under these authorities, the
Complaint has failed to state a claim under the Equal Pay Act, and it is not subject to amendment
at this time and under these circumstances. Accordingly, Defendant’s Motion will be GRANTED
and Plaintiff’s fourth cause of action dismissed.
An appropriate Order shall be issued.

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ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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