Lawhead v. Brookwood Management Company, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KATHY LAWHEAD, ) CASE NO: 5:22-cv-00886-JRA

)

)

Plaintiff, ) JUDGE JOHN ADAMS

)

v. ) MEMORANDUM OF OPINION

) AND ORDER

BROOKWOOD MANAGEMENT )

CO., LLC, )

)

Defendant. )

Pending before the Court is Defendant Brookwood Management Company, LLC’s

motion to dismiss the complaint. Upon review, the motion is GRANTED. The complaint

is thereby DISMISSED.

I. MOTION TO DISMISS

The Sixth Circuit stated the standard for reviewing a motion to dismiss in Assn. of

Cleveland Fire Fighters v. Cleveland, 502 F.3d 545 (6th Cir. 2007) as follows:

The Supreme Court has recently clarified the law with respect to what a

plaintiff must plead in order to survive a Rule 12(b)(6) motion. Bell Atl.

Corp. c. v. Twombly, 550 U.S. 544 (2007). The Court stated that “a

plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. at 1964-65 (citations and

quotation marks omitted). Additionally, the Court emphasized that even

though a complaint need not contain “detailed” factual allegations, its

“factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint

are true.” Id. (internal citation and quotation marks omitted). In so holding,

the Court disavowed the oft-quoted Rule 12(b)(6) standard of Conley v.

Gibson, 355 U.S. 41, 45-46 (1957) (recognizing “the accepted rule that a

complaint should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief”), characterizing that rule as

one “best forgotten as an incomplete, negative gloss on an accepted

pleading standard.” Twombly, 550 U.S. at 563.

Id. at 548. Instead, “a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009)

(internal quotations omitted).

If an allegation is capable of more than one inference, this Court must construe it

in the plaintiff’s favor. Columbia Natural Res., Inc v. Tatum, 58 F.3d 1101, 1109 (6th Cir.

1995) (citing Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)). This Court may

not grant a Rule 12(b)(6) motion merely because it may not believe the plaintiff’s factual

allegations. Id. Although this is a liberal standard of review, the plaintiff still must do more

than merely assert bare legal conclusions. Id. Specifically, the complaint must contain

“either direct or inferential allegations respecting all the material elements to sustain a

recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859

F.2d 434, 436 (6th Cir. 1988) (quotations and emphasis omitted).

The Court need accept only the complaint’s well-pleaded factual allegations as true.

Nwanguma v. Trump, 903 F.3d 604, 607 (6th Cir. 2018). “[L]egal conclusion[s] couched

as factual allegation[s],” on the other hand, “need not be accepted as true.” (citing Twombly,

550 U.S. at 555). After legal conclusions are disregarded, the complaint must set forth facts

that “raise a right to relief above the speculative level.” Id.

II. FACTS

On March 23, 2020, Plaintiff Kathy Lawhead (“Lawhead”) began working for

Brookwood, doing business as Danbury (“Brookwood”) in the role of Regional Director

of Clinical Services. She was terminated on October 7, 2021. Doc. 1, p. 4. Brookwood

operated senior living facilities and although Lawhead was a registered nurse, her position

at Brookwood was in administration. Doc. 1, p. 2., During the COVID-19 pandemic, which

began in the United States in March of 2020, Brookwood residents had the opportunity to

receive a COVID-19 vaccination. Doc. 1, p. 1. Because Lawhead was not employed in a

nursing capacity, she was not required to administer COVID-19 vaccinations to

Brookwood residents. Rather, Lawhead was tasked with coordinating the vaccination

program. Id.

Sometime during late September or early October of 2021, Brookwood prepared to

provide COVID-19 vaccine booster doses to Brookwood residents that were considered

“fully vaccinated.” Doc. 1, p. 3. Along with coordinating the program, Brookwood

informed Lawhead that she would also be required to administer vaccines. Id. Lawhead

informed Brookwood that administering the vaccine to residents would violate her deeply

held religious beliefs and the oath she took upon becoming a nurse, commonly known as

the Nightingale Pledge1. Id. Lawhead indicated that she would assist with the coordination

of a clinic for the administration of the COVID-19 booster injections, but she would not

personally administer vaccinations. Id. Brookwood did not respond to Lawhead’s

concerns, nor did it ask for any further information about her religious beliefs. Id.

On October 7, 2021, Lawhead alleges that she became aware that legally required

informed consent had not been properly obtained from Brookwood residents prior to them

receiving the initial series of COVID-19 vaccinations. Id. That same day, Lawhead verbally

reported these concerns to Brookwood and added that she was concerned that informed

consent would not be properly obtained for the booster dose injections either. Doc. 1, p. 4.

1 Lawhead does not provide the content of the Nightingale Pledge.

Brookwood did not respond to these allegations and terminated Lawhead’s employment,

effective immediately. Id. Lawhead filed a discrimination charge with the Equal

Employment Opportunity Center (EEOC) and received a Notice of Right to Sue based on

EEOC Charge Number 532-2022-00296 dated March 11, 2022. Id.

III. ANALYSIS

a. Title VII Religious Discrimination or Failure to Accommodate

Defendant moves for dismissal of Count I, asserting that Plaintiff has not met the

pleading requirements for a claim of under Title VII for religious discrimination or failure

to accommodate.

To survive a motion to dismiss a Title VII claim, Plaintiff need only plead non-

conclusory allegations establishing “(1) membership in the protected class, (2) specific

adverse employment taken against [her], and (3) instances in which [she] was treated less

favorably than others not in the protected class.” Warner v. Amazon.com Services LLC,

No. 1:21-CV-1885, 2022 WL 2342658 at *6 (N.D. Ohio June 29, 2022) (citing Lee v.

Vanderbilt Univ., No. 3:20-CV-00924, 2022 WL 1094654, at *11 (M.D. Tenn. Apr. 12,

2022; James v. Hampton, 592 F. App’x 449, 461 (6th Cir. 2015)).

Here, Defendant argues that dismissal is appropriate because Plaintiff has failed to

assert any factual allegations from which the Court could reasonably infer that she is a

member of a protected class. Doc. 9, p. 8. Defendant asserts that such a conclusory

statement does not satisfy the pleading standards. Plaintiff contends that asserting that she

has a “deeply held religious belief that conflicts with Defendant’s employment requirement

that she administer COVID-19 booster injections” is enough to fulfill the pleading

requirements. Doc. 11, p. 9. Plaintiff asserts that Defendant’s argument would result in a

heightened pleading standard, requiring her to establish her prima facie case of

discrimination at the pleading stage. Doc. 11, p. 7-8. The Court notes the distinction

between asserting facts at the pleading stage versus establishing facts at the summary

judgment stage.

Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain

statement of the claim showing that the pleader is entitled to relief.’

‘Specific facts are not necessary; the statement need only give the defendant

fair notice of what the ... claim is and the grounds upon which it rests.’

Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081

(2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

However, ‘[f]actual allegations must be enough to raise a right to relief

above the speculative level’ and to ‘state a claim to relief that is plausible

on its face.’ Twombly, 550 U.S. at 555, 570. A plaintiff must ‘plead[] 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).

At issue here is whether Plaintiff alleged sufficient facts to allow the Court to

reasonably infer that she is a member of a protected class, as required to survive a motion

to dismiss. See, Warner v. Amazon.com Services LLC, No. 1:21-CV-1885, 2022 WL

2342658 at *6 (N.D. Ohio June 29, 2022). The Sixth Circuit dismissed a religious

discrimination claim arising under Title VII because the plaintiff did “not allege[] any

particulars about her religion that would even allow an inference that she was discriminated

against on account of her religion.” Pedreira v. Kentucky Baptist Homes for Child., Inc.,

579 F.3d 722, 728 (6th Cir. 2009), see also, Sam Han v. Univ. of Dayton, 541 F. App'x 622,

627 (6th Cir. 2013) Case: 5:22-cv-00886-JRA Doc #: 9 Filed: 07/29/22 7 of 13. PageID #:

30 8 AK3:1360827_v2 (citing Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir.2012);

(“To show that the termination was based on her religion, [the plaintiff] must show that it

was the religious aspect of her [conduct] that motivated her employer’s actions.”)(emphasis

in original); Egelkrout v. Aspirus, Inc., No. 22- CV-118-BBC, 2022 WL 2833961, at *3

(W.D. Wis. July 20, 2022) (“[P]laintiff makes no claim that the testing requirement

conflicted with her genuinely held religious beliefs. Instead, plaintiff opposed the testing

for personal and medical reasons.) Thus, Plaintiff must do something more than simply

assert a conclusory statement that she was terminated based on her religious beliefs.

Here, Plaintiff asserts that

15. On October 7, 2021, Mrs. Lawhead informed Brookwood that her

deeply held religious beliefs would be violated if she personally

administered the Covid 19 booster injections to Brookwood’s

residents.

16. On October 7, 2021, Mrs. Lawhead also informed Brookwood that

about her concerns that the long-term efficacy and safety of the Covid

19 booster injections were unknown, at best, and administering them

would violate the oath she took upon becoming a nurse, commonly

known as the Nightingale Pledge.

17. On October 7, 2021, Mrs. Lawhead suggested that a reasonable

accommodation for her religious beliefs would be for her assist with

the coordination and/or management of a ‘clinic’ for the administration

of Covid 19 booster injections as long as she would not be required to

personally administer the injections or booster doses to a resident.

18. Brookwood sought no further information about Mrs. Lawhead’s

religious beliefs, ethical beliefs, or her reasonable accommodation

request.

Doc. 1, p. 3. Plaintiff does not set forth any facts to explain her sincerely held religious

belief against administering the vaccinations. Instead, from these facts, it appears that

Plaintiff’s objections to administering the vaccinations are based upon her concerns about

the long-term efficacy and safety of the injections, and that administering the vaccines

would violate the Nightingale Pledge.

Courts have “differentiated between those whose views were religious in nature

and those whose views were ‘essentially political, sociological, or philosophical,’ stating,

‘no court should inquire into the validity or plausibility of the beliefs; instead, the task of

a court is “to decide whether the beliefs professed by a registrant are sincerely held and

whether they are in [the believer’s] own scheme of things, religious.”’” Fallon v. Mercy

Catholic Med. Ctr., 877 F.3d 487, 490-91 (3d Cir. 2017) See also, Mason v. Gen. Brown

Cent. Sch. Dist., 851 F.2d 47, 51 (2d Cir. 1988) (upholding as not clearly erroneous a

district court finding that certain parents’ opposition to vaccination was “based, not on

religious grounds, but on scientific and secular theories”); Hanzel v. Arter, 625 F. Supp.

1259, 1260, 1265 (S.D. Ohio 1985) (describing a professed belief in “chiropractic

ethics”—“a body of thought which teaches that injection of foreign substances into the

body is of no benefit and can only be harmful”—as philosophical rather than

religious); McCartney v. Austin, 31 A.D.2d 370, 298 N.Y.S.2d 26, 27 (N.Y. App. Div.

1969) (“[A]ppellants’ opposition [to vaccination]—whether or not predicated upon their

personal moral scruples or upon medical concern—is not upon religious grounds . . ..”).

Plaintiff does not assert any information that would allow this Court to infer that

she is a member of a protected class; ie, that a sincerely held religious belief restrains her

from administering the Covid-19 booster. Rather, her concerns sound in medical and

political concerns. For these reasons, Plaintiff has not met the pleading requirements for

her Title VII religious discrimination claim, and therefore this claim is dismissed.

b. Ohio’s Whistleblower Statute

Defendant moved to dismiss Count II of Plaintiff’s complaint concerning the

whistleblower claim brought under R.C. § 4113.52. Doc. 9, p. 9. Plaintiff does not oppose

dismissal. Doc. 11, p. 12. Defendant asserts that Plaintiff’s Whistleblower claims are barred

by the statute limitations because she filed her complaint beyond the 180-day limitation

provided by R.C. § 4113.52(D). This Court agrees, and therefore this claim is dismissed.

c. Wrongful Discharge in Violation of Public Policy

Defendant moves for dismissal of Count III, asserting that Plaintiff has not met the

pleading requirements for a claim of wrongful discharge in violation of public policy. For

Plaintiff to succeed on such a claim, she must establish four elements:

(1) That a clear public policy existed and was manifested either in a state or

federal constitution, statute or administrative regulation or in the common

law (the “clarity” element); (2) that dismissing employees under the

circumstances like those involved in Plaintiff’s dismissal would jeopardize

the public policy (the “jeopardy” element); (3) that Plaintiff’s dismissal was

motivated by conduct related to the public policy (the “causation” element);

and (4) that the employer lacked an overriding legitimate business

justification for the dismissal (the “overriding-justification element).

Avery v. Joint Twp. Dist. Mem’l Hosp, 504 F. Supp. 2d 248, 254 (N.D. Ohio 2007), aff’d,

286 F. App’x 256 (6th Cir. 2008). The Sixth Circuit has concluded that an action for

wrongful discharge in violation of public policy is not established where “the sole source

of the public policy opposing the discharge is a statute that provides the substantive right

and remedies for its breach.” Carrasco v. NOAMTC Inc., 124 F. App’x 297, 304 (6th Cir.

2004); see also, Grair v. Ohio Bell Tel. Co., No. 1:09-CV-01516, 2009 WL 2762359 at

*2 (N.D. Ohio Aug. 28, 2009) (stating “Ohio law rejects the belt-and-suspenders

approach: If existing law already provides remedies sufficient to vindicate the public

policy at issue, a plaintiff may not maintain a common-law wrongful discharge claim.”)

Here, Title VII has the potential to provide remedy for Plaintiff’s wrongful

discharge claim, and therefore Plaintiff cannot also derive remedy from a common law

claim of wrongful discharge in violation of public policy. For these reasons, this Court

finds that the claim of wrongful discharge in violation of public policy should be

dismissed.

III. CONCLUSION

For the reasons set forth above, Defendant’s motion to dismiss for failure to state a

claim upon which relief is GRANTED and Plaintiff’s complaint is DISMISSED in its

entirety.

IT IS SO ORDERED.

March 29, 2023 ____/s/ Judge John R. Adams_______

Date JUDGE JOHN R. ADAMS

UNITED STATES DISTRICT COURT