Kelly v. First Data Corporation

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JULIE KELLY,

Case No: 1:19-cv-372

Plaintiff, Cole, J.

v. Bowman, M.J.

FIRST DATA CORPORATION, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Julie Kelly, proceeding pro se, initiated this action on May 20, 2019 by filing

a complaint against her former employer, First Data Corporation, First Data’s CEO, her

former supervisor at First Data, two law firms that have represented First Data, and two

individual attorneys with those law firms. Pursuant to local practice, this case has been

referred to the undersigned for initial consideration. For the following reasons, I now

recommend that the motions of the two law firms and individual attorneys be granted in

full, and that the motion of First Data and its individual employees be granted except as

to a single claim against First Data under the Americans With Disabilities Act.1

I. Standard of Review

A. Rule 12(b)(6) Standard for Motion to Dismiss

Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The purpose of a motion under

Rule 12(b)(6) is to test the formal sufficiency of plaintiff’s claims for relief, not to resolve

1Two groups of Defendants have requested oral argument. (See Docs. 19, 22) Having determined that oral

argument is unnecessary for disposition, the undersigned denies the Defendants’ request.

Supp. 516, 519 (S.D. Ohio 1995). To avoid dismissal for failure to state a claim for relief,

the complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While the plaintiff need not plead

specific facts, her statement must “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

(2007) (internal quotation marks and citations omitted).

“When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must

accept as true all factual allegations in the complaint and must draw inferences in a light

most favorable to the plaintiff.” Gadberry v. Bethesda, 608 F. Supp.2d 916, 918 (S.D.

Ohio 2009). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955 (2007), the

Supreme Court explained that, “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations in the complaint.”

Id., 127 S.Ct. at 1969. At its outset, however, a complaint “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Id. at 1965; accord Ashcraft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1950 (2009);

see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (courts “are not bound to accept as

true a legal conclusion couched as a factual allegation”); Lewis v. ACB Bus. Servs., Inc.,

135 F.3d 389, 405 (6th Cir. 1998) (“court need not accept as true legal conclusions or

unwarranted factual inferences”). Thus, “[f]actual allegations must be enough to raise a

right to relief above the speculative level[.]” Twombly, 127 S.Ct. at 1965 (citations

omitted). While a complaint need not contain “heightened fact pleading of specifics,” it

must provide “enough facts to state a claim to relief that is plausible on its face” to survive

supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949.

Plaintiff filed her complaint pro se. Such pleadings ordinarily are construed more

liberally than those drafted by attorneys. Erickson v. Pardus, 127 S. Ct. at 2200 (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Because Plaintiff admits that the complaint

was drafted by her attorney in another matter, however, the complaint is not entitled to

the same degree of liberal construction afforded to most pro se pleadings. In addition, no

matter how liberally a pleading is construed, the Court will neither “conjure

up unpled allegations…nor create a claim for Plaintiff.” Rogers v. Detroit Police Dept.,

595 F.Supp.2d 757, 766 (E.D. Mich. 2009) (internal quotation marks and additional

citations omitted).

B. Alternative Standard of Review for Summary Judgment

With rare exceptions, the standard of review applicable to a motion to dismiss

generally constrains this Court’s review to the pleadings and any exhibits attached

thereto. Nevertheless, Defendants Jackson Lewis and Attorney Byrne have attached to

their motion several exhibits, including an affidavit by Attorney Byrne, and

correspondence between attorneys at Jackson Lewis and Plaintiff, which relate to Count

VIII of Plaintiff’s complaint. (Doc. 17-1). The motion of First Data, Frank Bisignano and

Robin Ording, and the motion of Saul Ewing Arnstein & Lehr, LLP (“SEAL”) and Cooper,

both refer to a separate affidavit of a court reporter who recorded Plaintiff’s deposition in

another case. (Doc. 20). Acknowledging the limitations of this Court’s scope of review

under Rule 12, Defendants explain that they are alternatively moving for summary

judgment solely as to Plaintiff’s claim for eavesdropping/invasion of privacy (Count VIII).

outside the pleadings.2 For the reasons discussed below, the undersigned finds the

motion to dismiss to be well-founded on all counts (including Count VIII) without

consideration of evidentiary exhibits. Should any reviewing court disagree, the

undersigned alternatively recommends that summary judgment be granted to all

Defendants with respect to Count VIII, on the basis of the court reporter’s affidavit and

the additional affidavit exhibits submitted by Defendants Jackson Lewis and Byrne.

In a motion for summary judgment, “a court must view the facts and any inferences

that can be drawn from those facts ... in the light most favorable to the nonmoving party.”

Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal

quotation marks omitted). “Summary judgment is only appropriate ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(c)) (internal quotation marks omitted). “Weighing of the evidence or making credibility

determinations are prohibited at summary judgment-rather, all facts must be viewed in

the light most favorable to the non-moving party.” Id.

The requirement that facts be construed in the light most favorable to the Plaintiff

does not mean that the court must find a factual dispute where record evidence

contradicts Plaintiff's unsupported allegations. After a moving party has carried its initial

burden of showing that no genuine issues of material fact remain in dispute, the burden

2Ironically, Plaintiff has attached several exhibits to her response and to her supplemental response in

opposition to dismissal. (Docs. 29, 30).

trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, (1986).

“The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964

F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d 859, 863 (6th

Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party

must present probative evidence that supports its complaint. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986). The non-moving party's evidence “is to be believed,

and all justifiable inferences are to be drawn in his favor.” Id. at 255. The court determines

whether the evidence requires submission to a jury or whether one party must prevail as

a matter of law because the issue is so one-sided. Id. at 251-52. To demonstrate a

genuine issue of fact, the opposing party “must do more than simply show that there is

some metaphysical doubt as to the material facts.... Where the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine

issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

II. Background and Allegations of Complaint

Plaintiff’s complaint spans 47-pages and ¶354 paragraphs and includes an

additional 188 pages of exhibits. The complaint also explicitly incorporates all records

filed in Case No. 1:18-mc-00010. (Complaint at ¶¶199-200). In light of those factors,

Plaintiff’s complaint cannot be described as a “short and plain statement” of her claims in

compliance with Rule 8. Nevertheless, the undersigned considers the totality of the

complaint and its exhibits for purposes of the pending motions to dismiss.

Plaintiff began her employment with First Data in 1998. She began working

remotely from her home office in Ohio, long before the onset of any alleged disability, in

April 2005. (Complaint at ¶¶38, 39, 44). Plaintiff continued to work for First Data until

On December 12, 2012, Plaintiff gave birth to twins. Following that event, she

experienced significant post-partum medical issues, both physical and mental. Plaintiff

sought treatment, but does not allege that she requested or required any

accommodations from her employer. To the contrary, she alleges that she returned to

work in March 2013 without any change to her position or responsibilities. However, she

has continued to receive medical treatment for the same conditions through the present

time. (Id. at ¶¶ 46-51).

From August 2014 until November 2016, Plaintiff’s direct supervisor was Steven

Barger (“Barger”). While still under Barger’s supervision, Plaintiff became pregnant again

and was advised not to travel by her physician in October 2014. She requested a “no

travel” work-from-home accommodation, which was approved by Barger. (Id. at ¶65; see

also Doc. 1-2 at 22, document reflecting approval of limitations “through the duration of

high-risk pregnancy).

In January 2015, while Plaintiff was still pregnant, the new CEO of First Data, Frank

Bisignano, implemented a policy that required all employees to work from an office

location except for those involved in direct sales. The new policy impacted Kelly, who

had worked from home for many years. On February 20, 2015, Plaintiff gave birth to a

son. (Complaint at ¶¶67-69, 72). Plaintiff again had medical complications including post-

partum depression but nevertheless returned to work from her home on April 23, 2015.

(Id. at ¶¶76-78). Based upon her understanding that she would be required either to

work from First Data’s Cincinnati office or to resign, Plaintiff wrote a resignation letter to

Barger in April 2015 informing him that she would be unable to commute to the Cincinnati

talks and Barger approved Kelly’s request to continue working from home “as an

accommodation.” (Id. at ¶¶85-88).

In mid-2016, Kelly experienced additional health issues, for which she was

hospitalized. Barger himself took a medical leave of absence shortly before Thanksgiving

2016, and Defendant Robin Ording took his place as interim supervisor. On January 17,

2017, Ording announced that Barger had “retired” and that she would take his place

permanently. Kelly later learned that Barger had been terminated the day before he was

scheduled to return from leave. (Id. at ¶¶93-95).

In 2017, Ording began enforcing the same no-work-from-home policy that had

been put into place two years earlier. Kelly allegedly advised Ording that she had been

able to work from home as a medical accommodation for many years, but Ording denied

any continued accommodation. Around the same time in January 2017, 30% of the sales

transformation and training team were terminated as part of a reorganization. Kelly

“feared termination…if again she repeated her request for a work-from-home

accommodation.” (Id. at ¶¶107-109). Ording began assigning more work to Kelly,

including administrative tasks. (Id. at ¶¶118-120). Kelly advised Ording several times of

her various medical conditions. (Id. at ¶123).

In February 2017, Ording promoted Kelly and gave her a raise. Ording transferred

additional job duties to Plaintiff on March 31, 2017. (Id. at ¶125). Kelly alleges that she

continued to perform all assigned duties “while driving 1.5 to 2 hours each way to the

3The complaint alleges that the letter stated the basis for her decision was “health and family obligations.”

However, the letter is attached to the complaint as an exhibit and includes no reference to any health

concerns. The Court is not required to accept an allegation that is clearly contradicted by an exhibit

attached to the complaint.

“the difficulties of the situation, over work and hours of commuting” and the negative

impact on Plaintiff’s health. (Id. at ¶132). Kelly also “asked Ording to work-from-home

for medical reasons, or allow a schedule allowing some days of at-home work and others

in the office, and Ording refused and continued to enforce the office attendance

requirement.” (Id. at ¶134).

In August 2017,4 former employee Barger filed an employment discrimination

lawsuit against First Data and others in the United States District Court for the Eastern

District of New York (E.D.N.Y. Case No. 1:17-cv-04869-FB-LB, the “Barger case”).

Defendant law firm SEAL represents First Data in the New York case.

On October 5, 2017, Kelly suffered chest pains from “heightened anxiety and

stress.” She told Ording that she needed to go to the ER, where she was evaluated and

advised to follow up with her cardiologist. No one notified Kelly of her FMLA rights at that

time. (Complaint at ¶¶141-146).

On November 6, 2017, Ording and Kelly had a telephonic meeting during which

Kelly alleges she announced her plan to resign due to health concerns. Ording stated

that she would talk to HR “to see what First Data could do,” which Kelly interpreted as

meaning that she would speak to HR about the possibility of a severance package. (Id.

at ¶148). The next day, Ording announced Kelly’s departure during a conference call and

stated Kelly would be leaving to focus on her health and family. (Id. at ¶149). On

November 14, 2017, Kelly formally resigned via email. The email, attached as an exhibit

to Kelly’s complaint, states in relevant part:

4Plaintiff’s complaint refers to the incorrect year of 2018, but correctly identifies the EDNY Case No. 1:17-

cv-4869, which reflects the filing year of 2017. (Id. at 162).

stellar teams for Frist Data, the change in policies, such as the requirement

to work in an office location, have proven prohibitive to my success both

professionally and personality [sic]. I have been fortunate to have ‘grown-

up’ with First Data and have greatly appreciated the experiences and

positive work life balance the company once promoted.

During the past two years, I have done a highly successful job of balancing

the demands of First Data with the ever changing deadlines, priorities,

teams and projects. With that said, I have also lost many precious hours

that could have been dedicated to what means the most, my health and

family. Lost time in the countless hours of commuting to a building where

a handful of people report in to. After working successfully from home for

nearly 10 years, the change First Data made has contributed to my

numerous health issues with increased stress, financial constraints and

extraordinary burdens on my family.

Through a long, hard, thought out process, and for my health and family,

First Data and I must part ways as of November 30th, 2017. …

(Complaint at ¶152; Doc. 1-2 at 43).

The email concludes with a reiteration of Plaintiff’s history of “driving results,

pristine service dedication and commitment” and a formal request for a severance

package “to assist in my transition.” Id. Plaintiff specifically requests six months’ pay,

unused vacation time and bonus payouts, plus a payout of previously awarded (but not

vested) stock grants. Ording and Kelly spoke about her request for a severance package

on November 15, 2017. After that call, during which Ording was “hostile” and suggested

the request would be denied due to Kelly’s decision to resign, Kelly stopped working and

used accumulated leave time until her last day of employment on November 30. (Id. at

¶¶154-55).

On November 26, 2017, First Data’s counsel included Kelly on a list of individuals

likely to have discoverable information in its Rule 26(a) disclosures in the Barger case,

identifying Kelly has “an employee of First Data who worked with [Barger] in the Training

Department, has knowledge of [Barger’s] performance as Manager of the Training

Complaint.” (Case No. 1:18-mc-00010, Doc. 10-1 at 13). Consistent with all other

employees and former employees identified on the same list (except for Barger, whose

opposing counsel is identified), the Rule 26(a) disclosure indicates that Kelly “may only

be contacted through the undersigned counsel.” (Complaint at ¶164; see also Case No.

1:18-cv-0010, Doc. 10-1 at 12).

Plaintiff was not aware when disclosures were filed in the Barger case that she

had been listed as a witness and had no contact with First Data lawyers at that time. No

First Data lawyer ever told Plaintiff that they were representing her personally. However,

in a statement filed in this Court on August 31, 2018, Plaintiff indicates that when she

eventually learned that she had been listed as a witness in the Barger case and could

“only be contacted” through First Data’s counsel, she concluded based on her “research”

that “this act meant that they were my lawyers in the Barger v. First Data Corporation

case.” (Case No. 1:18-mc-00010, Doc. 10 at 2).

Soon after her final day of employment, on December 5, 2017, Kelly received a

letter from First Data’s counsel to “remind” her of post-employment obligations, including

a two-year non-solicitation and a one year non-compete agreement. (Doc. 1-2 at 112).

Months later, in correspondence directed to First Data’s in-house legal counsel dated

April 27 and May 3, 2018, Mr. Shearer asserted various claims and stated his intention to

file a formal EEOC charge on Kelly’s behalf. (Doc. 1-1 at 19, 58-59; see also Doc. 1-2 at

97). Through that correspondence, First Data learned that Kelly was claiming

employment discrimination and was being represented by the same counsel who was

representing Barger.

On or about May 10, 2018, believing Shearer to be representing Kelly, outside

witness in the unrelated Barger case. Shearer immediately responded by accusing First

Data of retaliation, but also clarifying that he represented Kelly only in her own EEOC

discrimination case, and not in the Barger case. (Case No. 18-mc-00010, Doc. 1-1 at

14). Shearer instructed SEAL to serve Kelly directly with any notice of deposition relating

to the Barger case. (Id.)

On May 16, 2018, through Shearer, Kelly dual-filed her formal discrimination

charge with both the EEOC and OCRC; she provided a copy to First Data’s in-house

counsel on May 17, 2018. Plaintiff later amended her discrimination charge to include

retaliation claims based upon First Data’s actions to depose her in the Barger case.

On May 23, 2018, First Data served a third-party subpoena upon Kelly, initially

noticing her deposition for June 25, 2018. Consistent with Shearer’s correspondence,

Plaintiff alleges that her deposition in the Barger case was intended for “no purpose other

than to harass Kelly for raising her discrimination charges with First Data’s in-house legal

department a week earlier, and to intimidate Kelly from filing those charges with the EEOC

and OCRC.” (Complaint at ¶¶170, 179). In May and June 2018, Kelly and SEAL

continued to communicate about First Data’s intention to depose her, during which time

Kelly “indicated her understanding…that SEAL was her counsel” in the Barger Case

based on First Data’s Rule 26(a) disclosures in that case. Kelly questioned why “her

lawyers,” were seeking to depose her. (Id. at ¶181). Plaintiff also “expressed confusion”

about the timing of the Barger case subpoena and stated her belief that the deposition

was in retaliation for her filing a discrimination charge. (Id. at ¶182).

On June 6 and/or June 20, 2018, First Data formally denied Kelly’s request for a

severance package. (Doc. 1-2 at 54-55). In the June 20 letter to Attorney Shearer, First

eligible for severance under the Severance Plan, which excludes voluntary resignations.”

The letter states: “[E]ven if the company accepts as true the claim that your client was

forced to resign (which is denied), a constructive termination is also a non-eligible

termination reason under Section 7 [of] the Severance Plan.” (Id.)

Plaintiff alleges that she appeared for a deposition that had been noticed for June

25, 2018 in the Barger case but that no one from First Data appeared. On July 3, 2018,

she alleges that SEAL violated their “duty to Kelly as her listed counsel in the …Rule

26(a)(1) disclosures” by filing a response opposing Kelly’s separate OCRC discrimination

charge, and by seeking to reschedule her deposition in the Barger case. Kelly alleges

that as of July 10, 2018,5 she still “believed SEAL was representing her as her counsel in

the Barger Case,” and only learned on July 12, 2018 that First Data’s OCRC position was

adverse to her. (Id. at ¶¶195-196).

On July 18, 2018, Kelly amended her discrimination charge to allege that her

summons to testify at a deposition in the Barger case and other events “were designed

as retaliation against Kelly for raising her charges of discrimination with the OCRC and

EEOC.” (Id. at ¶197).

On July 23, 2018, First Data filed a miscellaneous action in this Court, Case No.

5Plaintiff’s alleged belief that First Data’s counsel somehow represented her is undermined by multiple other

allegations and the exhibits attached to her complaint, in which she and/or Shearer strongly objected to her

being deposed in the Barger case and accused First Data of issuing the subpoena as a form of “direct

retaliation for” Kelly’s own discrimination claims. (See Doc. 24-1 at 7; see also Case No. 1:18-mc-00010,

Doc. 1-1 at 14). Kelly’s professed belief is further undermined by other statements to this Court. Nowhere

does Kelly allege that any First Data attorney communicated directly that they were representing her

personally. To the contrary, exhibits in the record of Case No. 1:18-mc-00010 reflect that First Data’s

attorneys denied being Kelly’s attorney in response to her inquiries. See also Case No. 1:18-mc-00010,

Doc. 10 at 2 (Kelly’s statement that she concluded, based upon her own (mis)interpretation of case law,

that being listed on the Rule 26(a)(1) disclosure statement in the Barger case meant that First Data’s

lawyers represented her personally).

to appear for a deposition in the Barger case. (Id. at ¶199). First Data retained Jackson

Lewis and Attorney Matthew Byrne as local counsel in the miscellaneous action.

Plaintiff’s complaint refers to August 3, 2018 as the first date in which she received

communication from Defendant Byrne; namely, his response to her motion to quash the

subpoena commanding her third-party deposition. Following an informal telephonic

hearing, the undersigned entered a notational order that reflected the parties’ agreement

for Kelly to appear for her deposition on August 31.

Kelly did not sit for her scheduled deposition on that date. Instead, Kelly filed a

pro se motion for protective order on August 31 again seeking to prevent her deposition

from occurring. (Id. at ¶213). Kelly alleges that when she arrived at the deposition site,

she discovered that First Data had brought Ording as its corporate representative, despite

Defendants’ awareness of “the OCRC Charge against Ording, including stress and

anxiety caused by Ording to Kelly.” (Id. at ¶216). Kelly alleges she left the deposition

site “due to Ording’s presence” to seek treatment “for anxiety and stress” based upon the

“trigger for the re-occurrence” caused by Ording’s presence.6

First Data responded with a new motion to compel. In turn, Kelly filed a motion to

quash, along with a motion seeking a ruling on a motion for sanctions and a motion

seeking to obtain electronic filing rights. The undersigned granted the motion to compel

and denied several of Kelly’s motions on September 19, 2018. (Case No. 1:18-mc-00010

at Doc. 21). Kelly filed objections and additional motions. On October 9, 2018, the

6The record of Case No. 1:18-mc-00010 reflects that the issue of how Kelly discovered Ording’s presence,

and whether Kelly actually appeared at the deposition site prior to filing her motion for a protective order,

were strongly disputed. First Data submitted evidentiary exhibits that indicate that Kelly filed her motion

before Ording arrived.

compelling Kelly to appear. In the same Order, U.S. District Judge Dlott denied Kelly’s

motion for sanctions, denied Kelly’s motion for a protective order, and denied her motion

to reconsider the undersigned’s denial of electronic case filing rights. (Id. at Doc. 29).

Pursuant to the Court’s order, Kelly finally appeared for her deposition in the

Barger case on October 15, 2018 at the U.S. Potter Stewart Courthouse in Cincinnati,

Ohio. Counsel for First Data, Gillian Cooper of SEAL, took Kelly’s deposition; Ording was

again present as First Data’s corporate representative. Kelly alleges that the Defendants

“brought Ording to the deposition for no purpose other than to continue to retaliate

against, harass and intimidate Kelly for bringing her own charges of discrimination against

First Data.” (Complaint at ¶222). Contrary to the language of the subpoena and this

Court’s ruling in Case No. 18-cv-00010,7 Plaintiff alleges that most of her 5-hour

deposition “was spent by Cooper seeking information with respect to Kelly’s pending

OCRC Charge and the events between May 2018 and October 2018 regarding the

litigation and events surrounding Kelly’s deposition and the Kelly Compel Proceeding.”

(Id. at ¶224). Plaintiff alleges that Attorney Cooper “admitted on the record …that of all

the employees that reported to Barger listed on First Data’s Rule 26(a)(1) Disclosures…,

Kelly was singled out for subpoena, litigation, and deposition because she had filed her

own charge of discrimination against First Data.” (Id. at ¶226, emphasis added). She

7Plaintiff made similar allegations in Case No. 1:18-mc-00010. Defense counsel have repeatedly denied

any improper purpose and insisted throughout the miscellaneous proceeding that the deposition was to be

limited to the matters at issue in the Barger case. The subpoena requiring Kelly to appear in the Barger

case specifically states that Plaintiff is “not being asked by way of this subpoena or otherwise to produce

any documents or communications…relating to the Charge of Discrimination that you filed with the

[OCRC]…including but not limited to any communications you have had with the Law Offices of Shawn

Shearer, Shawn Shearer, Esq., and/or Brenda Barger regarding [your] Charge of Discrimination.” Case

No. 1:18-mc-00010, Doc. 8 at 14.

and intimidate Kelly for bringing her own charges of discrimination against First Data,”

that the deposition was used “for the improper purpose of discovery in this case…while

Kelly was appearing pro se and unrepresented in the Barger Case as a third-party

witness….” (Id. at ¶¶227-228).

Kelly further alleges “upon information and belief” that First Data’s counsel,

including SEAL, Cooper, Jackson Lewis and Byrne “surreptitiously” made a video

recording of her deposition. (Id. at ¶¶ 342-347). All of Plaintiff’s claims for retaliation,

violations of the Ohio Civil Rights Act, emotional distress and invasion of privacy in this

case relate to her deposition in the Barger case.

Included among the exhibits to Plaintiff’s complaint in this case is a Letter of

Determination dated February 19, 2019 from the Ohio Civil Rights Commission, rejecting

Plaintiff’s allegations of discrimination and retaliation and dismissing her Charge (as

amended) after concluding that it is “NOT PROBABLE that [First Data] has engaged in

an unlawful discriminatory practice in violation of Ohio Revised Code Chapter 4112.”

(Doc. 1-2 at 112-113). The OCRC could not substantiate Kelly’s claims of retaliation and

instead found it “undisputed that throughout [Kelly’s] employment she was granted FMLA

and reasonable accommodation requests when she presented medical certification.”

(Id.). The OCRC further concluded that Kelly “did not provide [First Data] with medical

certification requesting a reasonable accommodation after the 2015 work from home

policy took effect.” (Id.) Plaintiff initiated this federal lawsuit in response to the adverse

OCRC determination.

Plaintiff’s complaint contains the following claims: FMLA Interference (Count I);

ADA Failure to Accommodate (Count II); Title VII and Pregnancy Discrimination Act

Discharge (Count VI); Emotional Distress Claims (Count VII); Eavesdropping/Invasion of

Privacy (Count VIII).

III. Analysis of Defendants’ Motions

A. Motions to Dismiss by Law Firms and Attorney Defendants (Docs. 17, 22)

Both Defendant Jackson Lewis P.C. and Attorney Matthew Byrne, and Defendant

SEAL and Attorney Gillian Cooper, have filed separate motions to dismiss. (Docs. 17 and

22). Because their motions are based upon arguments that apply equally to all attorney

Defendants, these two motions are discussed together.8 For the reasons that follow, the

undersigned recommends dismissing all claims against the law firms and individual

attorneys, including Counts IV and V (retaliation), Count VII (emotional distress) and

Count VIII (Eavesdropping/Invasion of Privacy).

1. Retaliation Claims Against the Law Firms and Attorneys (Count IV

and Count V)

Plaintiff alleges that all Defendants, including the law firms of Jackson Lewis and

SEAL and individual attorneys Byrne and Cooper, are liable under the Americans with

Disabilities Act, Title VII and the PDA, and corresponding Ohio Civil Rights Act retaliation

provisions, because they retaliated against her by choosing to depose her in her former

supervisor’s employment discrimination case against First Data. The Sixth Circuit has

held that in order to establish a prima facie case of retaliation under the ADA, a plaintiff

must demonstrate that her “employer” knew of protective activity and that her “employer”

8The motion to dismiss filed by Jackson Lewis and Byrne further points to their extremely limited

involvement as local counsel for First Data in the miscellaneous matter, and the paucity of Plaintiff’s

allegations against them in this case. (See, e.g., Complaint at ¶¶18-20, 205, 220). Other than noting that

the additional arguments by Jackson Lewis and Byrne have merit, the undersigned finds no need to further

discuss them.

2014). First Data was Kelly’s employer. By contrast, neither the law firms or the attorneys

had any employment relationship with Plaintiff, which arguably defeats her retaliation

claims against them. See Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014).

In opposition to dismissal on this basis, Plaintiff cites to language in the statute that

prohibits retaliation by any “person,” see 42 U.S.C. § 12203(a), and argues that the law

firms and their attorneys all fall within that broad definition. However, the statutory

reference to “person” must be read in the context of the ADA as a whole as well as in light

of interpretive case law. Although some authority suggests that an individual supervisor

might be liable for retaliation, or perhaps a future employer who declines to hire someone

who engaged in protected activity during his or her prior employment, no controlling

authority holds that an attorney or law firm who is merely representing an employer can

be held liable for a retaliation claim under the ADA.

Plaintiff relies upon Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017), in which the

Ninth Circuit concluded based upon similar “any person” language in the Fair Labor

Standards Act that an attorney could be held liable under that statute’s anti-retaliation

provision. In contrast to the Ninth Circuit’s decision, however, a panel of the Sixth Circuit

expressly rejected Arias and reached the opposite conclusion when evaluating the same

statutory language. See Diaz v. Langcore, 751 Fed. Appx. 755, 759 (6th Cir. 2018)

(holding that an employee may not maintain a retaliation claim against an employer’s

attorneys). The undersigned must follow the Sixth Circuit’s approach, and is also

persuaded by it, as well as by similar conclusions drawn by other courts on this issue.

See generally, Hofmann v. Fermilab Nal/Ura, 205 F. Supp.2d 900, 905 (N.D. Ill. 2002)

(holding that plaintiff may not sue former employer’s lawyers because they were not her

2016 WL 12836011 (N.D. Ala. Nov. 18, 2014) (holding that Title VII does not reach

conduct allegedly taken by law firm defendant that had no employment relationship with

aggrieved party).

The attorneys and law firms also are entitled to dismissal of this claim because the

issuance of a subpoena requiring an employee to appear at a deposition is not the type

of adverse employment action that can sustain a retaliation claim.9 See, e.g., Collins v.

Kimberly-Clark Pennsylvania, LLC, 247 F. Supp.3d 571, 598 (E.D. Pa. 2017) (holding

that issuance of a subpoena is not an adverse employment action); Wright v. Eastman

Kodak Co., 550 F. Supp.2d 371, 380 (W.D.N.Y. 2008) (same). This is particularly true

here, where the Court previously rejected Plaintiff’s allegations of retaliation and of

improper purpose when it compelled Kelly to appear for her deposition in the

miscellaneous proceeding relating to the Barger case. See, e.g., Case No. 1:18-mc-

00010 at Docs. 21, 29, denying Kelly’s motion for a protective order.

The undersigned declines Plaintiff’s invitation to read Ohio’s law on retaliation

claims more broadly. Plaintiff’s Ohio Civil Rights Act retaliation claim is analyzed in the

same manner and fails for the same reasons. See Brown v. Drywall Supply, Inc., 305 F.

Supp.2d 814, 822 (S.D. Ohio 2004) (holding that the essential elements of a retaliation

claim under Ohio law and under the ADA are the same).

2. Claims for Emotional Distress (Count VII)

Plaintiff’s negligent, reckless, and intentional emotional distress claims against the

9In her response in opposition, Plaintiff argues that the anti-discrimination provision “does not say anything

about an adverse employment action.” (Doc. 29 at 15). However, an adverse action has long been held

to be a key element of a retaliation claim. See Blizzard v. Marion Technical College, 698 F.3d 275, 288

(6th Cir. 2012).

First Data. Plaintiff alleges that the Defendants are liable for the emotional distress that

she suffered when she was compelled to appear for her deposition, based upon the

attendance of Robin Ording as the corporate representative for First Data and Jackson

Lewis and/or Byrne’s sponsorship of the pro hac vice admission of Defendant Cooper.

(Complaint at ¶¶ 311-314, 318-319). However, pursuant to Ohio law, a claim of negligent

infliction of emotional distress is limited to “instances as where one was a bystander to

an accident or was in fear of physical consequences to his own person” and there is

“cognizance of a real danger.” Sericola v. Johnson, 98 N.E.3d 874, 880 (Ohio Ct. App.

11th Dist. 2017) (internal quotation marks and additional citation omitted). In the absence

of allegations of physical peril, there can be no claim for the negligent infliction of

emotional distress under Ohio law. Doe v. SexSearch.com, 551 F.3d 412, 417 (6th Cir.

2008). Plaintiff does not allege such physical peril.

In her response in opposition to dismissal, Plaintiff argues that her “stress and

anxiety” constitutes sufficient physical peril to support her claim. In support, she points

to an allegation that stress and anxiety led her to experiencing “cardiac issues” during her

employment on October 5, 2017, long before her deposition was noticed or taken. (Doc.

29 at 20). The alleged “cardiac issue” is far too attenuated to support a negligent infliction

of emotional distress claim at the deposition a year later, even if Plaintiff had alleged that

the law firms and attorneys had notice of Plaintiff’s 2017 ER visit.

Plaintiff further alleges that the law firms and attorneys should have known that

she did not attend the August 31, 2018 deposition due to “stress and anxiety attacks that

forced me to seek medical attention,” and that the Defendants were “aware” that her

stress was exacerbated by Ording’s presence but “intentionally chose Ording to attend

(Id. at 21). Again, Plaintiff’s allegations of “stress and anxiety” are insufficient as a matter

of law to support a negligent infliction of emotional distress claim. Plaintiff was not a

bystander to an accident. Her deposition occurred in the federal courthouse and was

compelled by this Court. Plaintiff admits that she was advised that she could contact the

undersigned should any issues arise but did elected not to do so despite Ording’s

presence. The suggestion that a law firm or lawyer involved in the deposition could be

liable under such circumstances for the negligent infliction of emotional distress based

upon Plaintiff’s “stress and anxiety” would require a significant and wholly unwarranted

expansion of Ohio law.

For the same reasons, Plaintiff fails to make out a claim for the intentional or

reckless infliction of emotional distress against the law firms or lawyers. To establish that

claim, Kelly must show that (1) Defendants intended to cause or recklessly caused her

serious emotional distress; (2) that the conduct of the law firms and attorneys “was

outrageous and extreme beyond all bounds of decency and subsequently can be

characterized as utterly intolerable in a civilized community”; (3) that the Defendants’

conduct was the proximate cause of Kelly’s serious psychic injuries; and (4) that Plaintiff’s

emotional distress was serious and of such a nature that no reasonable person could be

expected to endure it. Bolandar v. BP Oil Co., 128 Fed. Appx. 412, 419 (6th Cir. 2005)

(additional citations omitted). “To say that Ohio courts narrowly define ‘extreme and

outrageous conduct’ would be something of an understatement.” Id. (quoting Baab v.

AMR Services Corp., 811 F.Supp. 1246, 1269 (N.D. Ohio 1993)).

The actions of First Data’s counsel in obtaining the Order of this Court to compel

Kelly’s deposition in the Barger case cannot establish Plaintiff’s claim. Plaintiff’s

Court found legal cause to compel Kelly to attend her deposition in the Barger case.

Neither the pursuit of a motion to compel her attendance, nor counsel’s own attendance

or conduct, can support an emotional distress claim on the facts alleged.

Plaintiff also cannot rely upon the presence of Ording to establish her claims.

Although Kelly had requested that Ording be prohibited from attending the deposition,

(see Doc. 13 in Case No. 18-mc-00010), this Court did not grant that request. Plaintiff

acknowledges that her deposition was scheduled at the federal courthouse in part to

accommodate her sensitivities and to allow her to more easily seek judicial assistance for

any issues that arose. Plaintiff did not object or otherwise seek judicial intervention,

despite Ording’s presence, and instead proceeded with her deposition.

In sum, the Defendants are entitled to dismissal of all emotional distress claims

because none of Plaintiff’s allegations are sufficient to establish any such claim against

the law firms or lawyers under Ohio law.

3. Claims for Eavesdropping/Invasion of Privacy (Count VIII)

The law firms and lawyers also are entitled to dismissal of Plaintiff’s eavesdropping

and/or invasion of privacy claims (Count VIII). These claims are based upon Plaintiff’s

allegations that representatives of First Data attended her Barger case deposition by

telephone, and that Attorney Gillian Cooper used an iPad during that deposition.10 Under

Ohio law, the prima facie elements of an invasion of privacy claim are:

The unwarranted appropriation or exploitation of one’s personality, the

publicizing of one’s private affairs with which the public has no legitimate

10The certified court reporter who recorded Plaintiff’s deposition filed an affidavit in this case stating that

she provided the iPad to Attorney Cooper as part of the Realtime Translation transcription service offered

by her court reporting company, by which attorneys may view the testimony of the witness and anyone else

speaking at the deposition as the spoken words are being transcribed by the court reporter. (See Doc. 20,

Affidavit of Court Reporter Lisa Conley Yungblut).

manner as to outrage or cause mental suffering, shame or humiliation to a

person of ordinary sensibilities.

Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956). Even assuming the truth of all

allegations, Plaintiff has not alleged any of these elements. And even if she had, she

would not be able to make out a claim because a deposition is not a private activity.

Counsel for First Data, Gillian Cooper, announced the presence of First Data’s in-house

counsel at the start of the deposition and on the record. (Complaint at ¶335). Kelly did

not object to their participation.

Plaintiff alleges that a live video recording was created of her deposition without

her knowledge. (Id. at ¶¶ 337-342). However, the complaint offers few clues as to the

basis for this assertion. Plaintiff alleges that she was being listened to and watched during

the deposition breaks because she “noticed that the conference line…was never

disengaged during the breaks” and because an iPad was left in the room despite the

departure of counsel and Ording during breaks. (Id. at ¶¶341, 338). The complaint also

confusingly alleges that “opposing counsel” listened in on conversations “between Kelly

and her attorney in this case,” (id. at ¶349), even though Kelly proceeds pro se in this

case.

Plaintiff’s response in opposition to dismissal qualifies her allegations by stating:

“Privileged conversations between me and Mr. Shearer (who was representing me in my

EEOC charge) could have occurred and been listened to by First Data employees or First

Data lawyers.” (Doc. 29 at 23, emphasis added). In other words, Plaintiff concedes she

does not know whether she had any “privileged conversations” relating to her EEOC

charge (despite her contemporaneous knowledge that the phone line remained engaged),

and can only speculate that unknown persons “could have” listened to her conversations

hypothesizes that there is no way to be certain of whether anyone was listening or

watching “unannounced.” (Doc. 29 at 22). She states that it was “upsetting” to learn that

she “possibly was listened to during my deposition.” (Doc. 29 at 22, emphasis added).

Aside from the fact that Plaintiff’s response significantly retreats from the allegations of

her complaint, even if true her allegations would not support an invasion of privacy claim

against the lawyers under Ohio law.

Plaintiff further claims that counsel invaded her privacy by failing to announce the

telephonic presence of in-house counsel (Poole and Graessr) “on the record.” But her

complaint alleges the opposite. (Complaint at ¶335). And again, such conduct is legally

insufficient to meet the standard for an invasion of privacy under Ohio law because it is

not so outrageous that it would cause “mental suffering, shame or humiliation to a person

of ordinary sensibilities.” Housh, 165 Ohio St. 35.

As an alternative to dismissal for failure to state a claim, the undersigned

recommends that summary judgment be granted. Consistent with the complaint, the

court reporter’s transcript reflects that the telephonic presence of First Data

representatives Jill Poole and Lori Graesser was announced on the record. The affidavit

submitted by the court reporter additionally reflects that the iPad was supplied by the court

reporting service solely for the purpose of enabling defense counsel to review a “realtime”

transcript of the Plaintiff’s testimony, and that no other covert recording or surreptitious

streaming occurred.

4. Ohio’s Litigation Privilege

Defendants argue that Plaintiff’s claims are also barred based upon the doctrine

of state law litigation privilege. Plaintiff’s claims against counsel are based upon “their

privilege typically is invoked by counsel as a defense against defamation. See generally,

Surace v. Wuliger, 25 Ohio St. 3d 229, 233-34, 495 N.E.2d 939 (1986); Hecht v. Levin,

66 Ohio St. 3d 458, 461-62, 613 N.E.2d 585 (1993). Despite its more common application

in the defamation context, the reasoning of the state courts suggests the potential for

broader application. Still, Ohio courts do not uniformly bar all lawsuits based upon

improper litigation conduct. See Sutton v. Stevens Painton Corp., 193 Ohio App.3d 68,

951 N.E.2d 91 (Ohio Ct. App. 2011) (suggesting a plaintiff might maintain an invasion of

privacy or emotional distress claim against a law firm). Instead, “[w]hether the absolute

privilege applies is a question of law.” Morrison v. Gugle, 142 Ohio App.3d 244, 260, 755

N.E.2d 404, 415 (2001). There is no corresponding federal “litigation privilege” and

federal courts have declined to adopt one.

Given the lack of controlling case law and the earlier conclusion that Plaintiff’s

claims against counsel are barred for other reasons, the undersigned declines to reach

this issue.

5. Defendants’ Motion(s) to Strike Plaintiff’s “Ghostwritten”

Complaint

The law firms and attorneys request that Plaintiff’s entire complaint be stricken

because it has been “ghost written” by counsel. Plaintiff ostensibly filed her complaint

“pro se.” However, within the body of her complaint in this case, Plaintiff repeatedly refers

to having counsel in this case. (See, e.g., Complaint at ¶¶ 339, 343, 349). She also

requests an award of attorney’s fees.

Defendants persuasively argue that the references to counsel are to Shawn

Shearer. In her response, Plaintiff concedes that Shearer (who is not admitted to practice

research and the rest of her file after she determined she could not afford to continue to

retain him in this case. (Doc. 29 at 26-27; id. at 30 “[e]veryone, including SEAL and

Jackson Lewis, knew Mr. Shearer wrote the Complaint.”). Plaintiff insists that she does

proceed pro se because she appropriated his “draft” as her own. She argues that striking

the complaint and all of her claims would be “severe punishment” and grossly unfair to

those who cannot afford counsel.

The undersigned cannot approve of Plaintiff’s representation that she proceeds

“pro se” while admittedly using a complaint that was drafted by her attorney in another

matter. At the same time, the Court agrees with Plaintiff that striking the complaint is too

severe a penalty for her implicit misrepresentation as to the “pro se” nature of her

complaint. As a more appropriate remedy, the undersigned declines to construe the

complaint with the same degree of liberality with which most pro se complaints are

viewed.

B. Motion to Dismiss by Defendants First Data Corporation, Frank

Bisignano, and Robin Ording (Doc. 19)

Unlike the law firms and individual attorneys, First Data was Plaintiff’s employer.

Frank Bisignano is First Data’s CEO, and Robin Ording was Plaintiff’s direct supervisor.

Plaintiff asserts the same retaliation, emotional distress and eavesdropping/invasion of

privacy claims against this group of Defendants, along with five additional claims.

Although the Defendants are entitled to dismissal of most claims for many of the same

reasons discussed above, the undersigned concludes, at this early stage of litigation, that

Plaintiff has sufficiently alleged a “failure to accommodate” claim against First Data to

proceed to discovery.

1. FMLA Interference Claim (Count I)

In Count I of the complaint, Plaintiff alleges that First Data, Bisignano and Ording

are liable for “FMLA interference” based upon their failure to advise her of FMLA eligibility

for “cardiac issues” that caused her to leave work and go to the emergency room on

October 5, 2017. FMLA regulations provide that “when the employer acquires knowledge

that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify

the employee of the employee’s eligibility to take FMLA leave within five business days,

absent extenuating circumstances.” 29 C.F.R. § 825.300(b)(1). Plaintiff alleges that she

informed Ording on October 5, 2017 that her heart was “racing” and that she needed to

go to the emergency room that afternoon. (Id. at ¶¶141, 144). She further alleges that

Defendants did not notify her of her eligibility for FMLA leave within five days of October

5, 2017.

Defendants persuasively argue that Plaintiff’s “interference” claim fails because

the complaint includes no allegations that the Defendants had information that would

trigger an obligation to provide notice, or that the October 5, 2017 event was an FMLA-

qualifying condition. A qualifying “serious health condition” would include an impairment

that requires inpatient care in a hospital requiring an overnight stay, or continuing

treatment by a healthcare professional that includes a period of incapacity of more than

three consecutive days. See 29 C.F.R. §§825.114, 825.115. Plaintiff has failed to allege

anything about the events of October 5, 2017 that would have put a reasonable employer

on notice that her ER visit was for an FMLA-qualifying reason. Although Plaintiff alleges

that she reported her heart was “racing” due to “stress” and that she had to leave work

early, she does not allege that she was admitted to the hospital, or incapacitated for more

Defendants of any type of serious health condition that would qualify for FMLA leave. In

fact, Plaintiff does not allege that she missed even a single full day of work on October 5

or on any subsequent day.

In opposition to dismissal, Plaintiff protests that Defendants knew of her history of

“post-partum medical issues.” (Doc. 29 at 4). However, Plaintiff does not allege that she

experienced any “heart racing” prior to October 5, 2017. Whether Defendants knew of

pregnancy-related complications that Plaintiff experienced in 2012,11 during her second

pregnancy in 2014, and/or immediately following the birth of her son in February 2015,12

is irrelevant to the Defendants’ understanding of the acute “heart racing” issues of which

Plaintiff complained in October 2017. Liability for “interference” can arise only if Plaintiff

can show that the Defendants had notice of a potentially-qualifying “serious medical

condition” under the FMLA. Knowledge of other types of medical conditions that Plaintiff

may have experienced over the years is not sufficient to put Defendants on notice that

new and entirely different symptoms qualified for FMLA leave. Other than Plaintiff’s

conclusory assertion that her “condition on October 5, 2017 was a serious health

condition for which FMLA leave was available,” (id. at ¶145), the complaint contains no

allegations to suggest that the ER visit constituted a new FMLA qualifying condition, or

that it related to the FMLA leave taken more than two years earlier. (See id. at ¶239,

11Kelly does not allege that she ever requested any FMLA accommodations for any serious medical

conditions following her first pregnancy in 2012. To the contrary, she alleges that she was able to return to

work without change to her position or responsibilities.

12Plaintiff alleges that around October 2014 she alerted her direct supervisor (Barger) to the fact that her

obstetrician had ordered “no travel” during that pregnancy – an accommodation that Barger approved.

(Complaint at ¶¶63-65). She alleges that Barger later approved her request to continue working from home

when she returned from maternity leave in April 2015 as an “accommodation” for her “post-partum medical

conditions.” (Id. at ¶ 85).

following the birth of a child.”).

The only fact that Plaintiff offers to support her conclusory assertion that her “heart

racing” was an FMLA-qualifying condition is that she reported to the ER. However, many

acute medical conditions, including allergic reactions, cuts requiring stiches, or a fall that

warrants x-rays but does not result in broken bones, might require ER treatment but would

not necessarily qualify as a “serious medical condition” under the FMLA in the absence

of overnight hospitalization or incapacitation for three days or more. Plaintiff argues that

this issue can be investigated “during discovery not through dismissal before facts are

developed.” (Doc. 29 at 4). But a plaintiff is not entitled to discovery when her allegations

are insufficient as a matter of law to state any claim. And a plaintiff cannot state a claim

merely by spouting legal conclusions without supporting facts. Iqbal, 129 S.Ct. at 1949.

Thus, in the absence of any allegations that would suggest Plaintiff was experiencing a

qualifying FMLA condition on October 5, 2017, much less that Defendants were aware of

that “serious medical condition,” the Defendants are entitled to dismissal of Plaintiff’s

FMLA interference claim.

Switching tactics, Plaintiff alternatively argues that her interference claim survives

based upon the allegation that “Defendants’ practice of terminating employees in mass

and while on leave created an atmosphere that discouraged me from exercising my FMLA

entitlements.” She cites Presson v. Parkview Med. Ctr., Inc., 2017 WL 1197298 (D. Colo.

Mar. 30, 2017) as support for the proposition that an interference claim can be stated by

showing that an employer provided a strong disincentive or discouraged use of available

FMLA leave. As an unpublished trial court case from outside the Sixth Circuit, Presson

is not controlling. In any event, Presson held that “interference claims must have some

1197298, at *6. Plaintiff’s allegations regarding company-wide lay-offs do not tie those

events to any employee’s use of FMLA leave, or otherwise suggest any overt or implicit

employer hostility to the use of such leave. In fact, Plaintiff alleges that she was granted

FMLA leave on other occasions on which she sought such leave. In the absence of

allegations of hostility to the use of FMLA leave, Plaintiff’s alleged “fear” of upsetting her

employer is insufficient to state an interference claim.

Bisignano and Ording further argue that they cannot be held liable for an

interference claim as individuals. Having determined that Plaintiff’s allegations do not

state any interference claim as a matter of law, the undersigned finds no need to review

this alternative argument. But see Shaw v. Total Image Specialists, Inc., 2010 WL

11537942 at *3 (S.D. Ohio Mar. 5, 2010) (suggesting that individuals can be held liable

under appropriate circumstances).

2. ADA Failure to Accommodate (Count II)

In Count II, Kelly alleges that Defendant First Data failed to accommodate her

disability by requiring her to work in a First Data office rather than at home.13 To establish

a prima face case for failure to accommodate, Kelly must show: (1) she is disabled under

the ADA; (2) she was otherwise qualified for her position, with or without reasonable

accommodation; (3) First Data knew or had reason to know about her disability; (4) she

requested an accommodation; and (5) First Data failed to provide a reasonable

accommodation. Aldini v. Kroger Co. of Mich., 628 Fed. Appx. 347, 350 (6th Cir. 2015).

a. Plaintiff alleges sufficient facts to state a claim

13Plaintiff’s “failure to accommodate” claim is alleged only against First Data, and not against any other

Defendant. (Doc. 1 at ¶259).

with a “disability.” However, the complaint does include an allegation that Kelly’s “post-

partum induced illnesses (depression, anxiety, liver, cardiac) were each a ‘disability’ ….as

they impaired ‘major life activity.’” (Complaint at ¶263). Standing alone, a single

conclusory statement might not suffice to make out Kelly’s ADA claim. But the complaint

contains numerous allegations that support Kelly’s conclusion that she had some form of

ADA “disability,” whether that was her post-partum depression or some other “post-

partum” medical issue.

Earlier in her complaint Plaintiff alleges that she began working from home in 2005

and continued to work from home both before and after the birth of twins in December

2012 despite “significant post-partum medical issues.” Undermining any claim of

disability in 2012 or 2013, she alleges that she “returned to work…in March 2013 without

change to her pre-leave position or responsibilities.” (Complaint at ¶¶ 48-49). However,

during a second pregnancy on or about October 2014, Plaintiff alleges that her physician

ordered her not to travel and she first requested an “accommodation” to continue working

from home without travel. (Id. at ¶¶63-65). Around the time that Plaintiff was due to return

from her second maternity leave, First Data began to enforce the new no-work-from-home

policy. (Id. at ¶80). Although contradicted by the exhibit attached to the complaint,14

Kelly alleges she “wrote a resignation letter identifying the effects on her health from

14Kelly alleges that the letter informed Barger that she could not commute “due to health and family.”

(Complaint at ¶85). However, the letter recites her 17-year history of successful work from her home office

without any reference to health concerns. The letter complains that “the time and costs that it would take

to commute into the Blue Ash corporate office…are prohibitive to my success both professionally and

personally.” (Doc. 1-2 at 109). First Data points to similar language in Plaintiff’s final resignation letter two

years later, in November 2018, that calls into question whether Plaintiff sought to work from home as an

“accommodation” or for financial and personal reasons. In the context of the pending motion to dismiss,

however, this Court draws all reasonable inferences in Plaintiff’s favor. Unlike the 2015 letter, Plaintiff’s

2018 resignation letter includes some reference to the adverse effects of commuting on Plaintiff’s “health.”

leave in April 2015. (Id. at ¶83). After discussing “her need for an accommodation for

her post-partum depression and other post-partum medical conditions continuing from

the birth of her twins and exacerbated by the birth of her son two months earlier,” Kelly

requested that she be permitted to continue working from home as an “accommodation.”

(Id. at ¶¶85-86). Barger approved that request. (Id. at ¶87). First Data argues that Kelly

fails to allege that her employer knew or should have known that she had any health

condition that required her to work from home. Despite some ambiguity, the undersigned

concludes that Plaintiff’s discussions with Barger are sufficient to show First Data’s

knowledge of such a condition in late 2014 and/or early 2015.

Plaintiff alleges that First Data’s knowledge continued after Ording became

Plaintiff’s supervisor. Around January 2017, Ording began enforcing First Data’s no-

work-from-home policy. (Id. at ¶96). Kelly alleges that she “advised Ording that she had

been working from home as an accommodation granted by …her prior two supervisors.”

(Id. at ¶99). However, Ording “did not extend the accommodation” and instead “required

Kelly to meet the office attendance requirements despite the accommodation previously

granted to her.” (Id. at ¶100). Kelly specifically alleges that “Ording was aware of Kelly’s

medical condition and request for a work-from-home accommodation,” was aware “that

Fricke and Barger had granted Kelly a work-from-home accommodation,” but “made clear

to Kelly that office attendance was required.” (Id. at ¶¶107-108). Kelly alleges that she

“advised Ording several times of her medical condition involving continuing effects of her

pregnancies, including anxiety, stress disorders, high blood pressure, non-alcoholic liver

disease, among others.” (Id. at ¶123). She alleges that she “advised Ording of the

difficulties of the situation, over work and hours of commuting, were causing her health.”

from-home for medical reasons, or allow a schedule allowing some days of at-home work

and others in the office, and Ording refused and continued to enforce the office

attendance requirement.” (Id. at ¶134). Plaintiff reiterates that she “requested that First

Data and Ording reinstate her remote work accommodation,” but that “First Data and

Ording denied Kelly’s work-from-home and modified schedule reasonable

accommodation requests” despite allowing another non-disabled employee to work

remotely. (Id. at ¶¶ 268, 272).

Defendants argue that Plaintiff’s “failure to accommodate” claim must be

dismissed “because Kelly does not allege any of her medical ailments substantially limited

one or more major life activities,” and that Kelly “fails to plead facts establishing that First

Data knew or should have known she had a disability.” (Doc. 19 at 11). Considering the

above allegations, I disagree. Construed liberally in the context of a motion to dismiss,

the complaint sufficiently alleges that Plaintiff requested a continuing “accommodation”

for a disability of which First Data was aware, but that First Data (through Ording)

unreasonably denied Plaintiff’s request. Although First Data correctly points out that

knowledge of a “medical condition” is not the same as knowledge of a “disability,” it is

reasonable to infer based on the allegations that Plaintiff is claiming that her medical

condition(s) qualified as a “disability” under the ADA and that by previously

accommodating the same medical condition(s), First Data was or should have been

aware of Plaintiff’s need for accommodation. See also generally Hostettler v. College of

Wooster, 795 F.3d 844, 853-854 (6th Cir. 2018) (reversing grant of summary judgment,

concluding that a genuine issue of material fact existed as to whether the plaintiff’s post-

partum depression constituted an ongoing disability).

to liability under the ADA because allowing Kelly to work from home was not a

“reasonable” accommodation. However, no controlling case law within the Sixth Circuit

supports Defendant’s view, and Hostettler arguably runs contrary to Defendants’

contention.

b. The Timeliness of Plaintiff’s Claims

Defendants assert that both the ADA “failure to accommodate” claim and the Title

VII/PDA claims are time-barred. Ording became Kelly’s supervisor and started enforcing

the office policy in January 2017, but Kelly did not file her charge until May 16, 2018. Both

the ADA and Title VII require a plaintiff to file a discrimination charge within 300 days after

the alleged discriminatory act in deferral states like Ohio. Based upon the May 16, 2018

charge filing date, any conduct prior to July 20, 2017 would be time-barred.

In response to the Defendants’ argument that her claims are time-barred, Plaintiff

argues that the operative dates include “Ording’s failure to grant my repeated requests

for the reinstatement of [my] previously revoked accommodation,” including at the time of

her resignation in November 2017. (Doc. 29 at 31 (emphasis added)). The issue of the

timeliness of Plaintiff’s ADA claim is close. However, because this limitations issue can

be better addressed after some discovery in the context of Rule 56, the undersigned

recommends that Defendants’ motion to dismiss Plaintiff’s “failure to accommodate” claim

be denied.

c. Filing a Complaint Prior to Receipt of EEOC Notice

In addition to the time limitation, the Defendants argue for dismissal on grounds

that Plaintiff did not receive a Right to Sue letter from the EEOC before filing this federal

case. Plaintiff incorrectly refers to a “Letter of Determination” from the OCRC as a “Right

represents that the EEOC closed its charge based upon the duplicate charge filed with

the OCRC. Plaintiff’s supplemental memorandum also refers to (and attaches as an

exhibit) a Notice of her Right to Sue from the EEOC dated June 18, 2019, reflecting the

EEOC’s adoption of the OCRC findings. Despite the Notice being dated a few weeks

after Plaintiff filed this lawsuit, dismissal would be inappropriate because the receipt of

the Notice cured any procedural defect. Kohn v. GTE North, Inc., 754 F.Supp. 563, 570

(S.D. Ohio 1990) (premature filing prior to the receipt of a notice of right to sue will not

defeat a plaintiff's claim); see also Fort Bend County, Texas v. Davis, 139 S. Ct. 1843

(2019) (holding that Title VII’s charge-filing requirement is not jurisdictional).

3. Title VII and the Pregnancy Discrimination Act (Count III)

In order to establish a prima facie case under Title VII and the PDA, Kelly must

allege that she: (1) is a member of a protected class; (2) was qualified for her job; (3) she

suffered an adverse employment decision; and (4) she was replaced by a person outside

the protected class or treated differently than similarly situated non-protected employees.

See White v. Baxter Heatlhcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). Defendants

persuasively argue that Plaintiff fails to state this claim.

In opposition to dismissal, Plaintiff argues that the fact that she is female and

qualified for her job is sufficient. It is not. Plaintiff’s gender and qualifications satisfy only

the first two elements of her claim. Plaintiff also must show that she suffered an adverse

employment action because of her pregnancy or gender. Although Plaintiff generally

alleges that her medical conditions arose from her 2012 and 2015 pregnancies, she fails

to connect any adverse employment action to those pregnancies. In fact, she seems to

allege the opposite: that she was granted a “no travel” restriction when she requested it

restrictions. (Complaint at ¶¶49, 79).

In opposition to dismissal, Plaintiff asserts that once Ording began enforcing the

January 2015 policy against her in January 2017, she was forced to choose between

commuting to the Cincinnati office and resigning. However, institution of a neutral

company-wide policy is not the type of adverse employment decision that can support a

claim. There is no basis to infer that the policy was related to pregnancy or gender.

The undersigned also recommends dismissal based upon Plaintiff’s failure to

allege and inability to prove the fourth element of her claim, that she was “replaced by a

person outside the protected class.” Plaintiff asserts that after she resigned in November

2017, her “job responsibilities were transferred to First Data employees in Europe.” (Doc.

29 at 8). Plaintiff does not identify whether these employees were male or female. Being

physically located in the United States is not a protected class, in part because Title VII

protections extend to employees of American companies located in Europe unless the

employer can prove compliance with the U.S. law “would cause [the] employer…to violate

the law of the foreign country in which such workplace is located.” 42 U.S.C. § 2000e-

1(b); see also Wang v. General Motors, LLC, 371 F.Supp.3d 407, 418-19 (E.D. Mich.

2019).

Plaintiff fails to include any allegations that would give rise to an inference that she

suffered an adverse employment action on the basis of her gender or pregnancy.

Therefore, she has failed to state a Title VII or PDA claim.

4. Retaliation Claims (Counts IV and V)

As discussed, Plaintiff’s retaliation claims are based wholly upon the fact that First

Data and its counsel scheduled her deposition in the Barger case shortly after Plaintiff

286. All of the events, litigation, and actions taken by [all Defendants] from

May 2018 to October 2018 in connection with Kelly’s third-party deposition

in the Barger Case were motivated by one or more of the following: Kelly

raising her charge of discrimination to First Data’s in-house legal

department; Kelly’s filing of the charge of discrimination with the EEOC and

OCRC; and/or Kelly amending her charge of discrimination being

investigated by the OCRC.

287. Within less than 10-days, each time Kelly provided notice of her

charges of discrimination or filed documents in connection with the charges,

the Defendants took prompt action to harass Kelly in the Barger Case;

288. The temporal proximity between each of Kelly’s actions in pursuing

her charges of discrimination under the ADA, Title VII, PDA and OCRA, and

the retaliatory action against her with regards to her subpoena, motions to

compel, protective orders, and sanction motions, demonstrate clear

retaliatory intent.

(Doc. 1, Complaint).

To establish a retaliation claim under the ADA, Title VII, the PDA or Ohio law, an

employee must allege: (1) she engaged in protected activity; (2) the employer knew that

she engaged in the protected activity; (3) she suffered an adverse employment action;

and (4) a causal connection exists between the protected activity and the adverse

employment action. See Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014) (ADA

retaliation); Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013) (Title VII and Ohio law);

A plaintiff “may prove unlawful retaliation by presenting direct evidence of such retaliation

or by establishing a prima facie case under the McDonnell Douglas framework.” Id., 703

F.3d at 336 (quoting Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.2003));

Blizzard v. Marion Technical College, 698 F.3d at 288.

Defendants argue that Plaintiff’s retaliation claim fails because an employee

cannot bring a “retaliation” claim following the termination of an employment relationship.

However, Defendants cite to cases under the Age Discrimination in Employment Act,

of the ADEA, Title VII’s anti-retaliation provision extends to former employees. See

Robinson v. Shell Oil Company, 519 U.S. 337, 345 (1997).

Defendants’ second argument – that none of the alleged actions taken by the

Defendants concerning Plaintiff’s deposition in the Barger case constitutes an “adverse

action” – is more persuasive. Although an adverse action under Title VII’s anti-retaliation

provision is not restricted to the terms and conditions of employment, the adverse action

must be of “material” significance and have some nexus to the protected activity. See

Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“We speak

of material adversity because we believe it is important to separate significant from trivial

harms”). The magnitude of adverse action required is defined by reference to an

objective standard, avoiding “the uncertainties and unfair discrepancies that can plague

a judicial effort to determine a plaintiff's unusual subjective feelings.” Id. at 68-69. Thus,

Title VII “prohibits employer action that ‘well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.’” Thompson v. North American

Stainless, LP, 131 S.Ct. 863, 868 (2011) (quoting Burlington, 548 U.S. at 68). In the case

of a former employee, an adverse action sufficient to support a retaliation claim might

include a negative job reference, which would be sufficiently “material” because it could

impact prospects of future employment. See, e.g., Abbott v. Crown Motor Co., 348 F.3d

at 543; Taylor v. Geithner, 703 F.3d at 339; Bryant v. Central Cmty Health Board, 2017

WL 1164345, *5 (S.D. Ohio Mar. 29, 2017) (finding a former employer’s email to a current

employer regarding a plaintiff’s work abilities constitutes an adverse action).

Here, Plaintiff fails to allege any “material” adverse action. Plaintiff bitterly

complains about the fact that First Data sought to take her deposition as a fact witness in

attorney in late April or May of 2018 that she intended to file an EEOC charge that First

Data first notified her of its intent to depose her. However, undermining that temporal

proximity is the fact that Plaintiff was listed as a potential witness on First Data’s Rule

26(a)(1) disclosures long before she engaged in any protected activity, when she was still

employed by First Data. Even more critically, being deposed as a witness in an unrelated

employment discrimination case is not a materially adverse action that would dissuade a

“reasonable worker” from making or supporting a discrimination charge.15

Even if being deposed could support a retaliation claim in some hypothetical

circumstance that the undersigned does not currently comprehend, Plaintiff cannot

possibly make out a retaliation claim in this case based upon this Court’s multiple rulings

in First Data’s favor in Case No. 1:18-mc-00010. In the miscellaneous case, the Court

compelled Plaintiff to attend her deposition and denied Plaintiff’s motions for a protective

order and for sanctions, rejecting Plaintiff’s contention that the deposition was for an

improper purpose. Plaintiff did not appeal those rulings, which are incompatible with

Plaintiff’s present retaliation claim. Thus, no viable “retaliation” claim can be stated

against First Data for its actions in asserting a legally enforceable right to compel Plaintiff’s

deposition in the Barger case.

Plaintiff argues that additional circumstances surrounding the deposition, including

First Data’s “no-show” for her first deposition date of June 25, 2018, the motion to compel

her to appear for a later deposition date and First Data’s opposition to Plaintiff’s motions

for a protective order, can independently qualify as adverse actions. However, none of

15The complaint makes clear that Plaintiff was not dissuaded from amending her own existing charge

against First Data in order to include new allegations arising from the same alleged “retaliation.”

were not foreclosed by this Court’s prior rulings in Case No. 1:18-mc-00010.

In her opposition to dismissal Plaintiff suggests two more possible “adverse

actions” alleged in the background section of her complaint, though not specifically

restated as part of her retaliation claims. First, she suggests that her receipt of a post-

termination letter from First Data’s attorney advising her that she was subject to non-

compete and non-solicitation contractual provisions was a sufficiently “adverse action.”

But surely, First Data’s assertion of contractual rights cannot constitute retaliation;

otherwise, an employer could never enforce a non-compete agreement against any

employee who asserted any type of employment discrimination claim.

Second, Plaintiff suggests that First Data denied her request for severance pay in

retaliation for her EEOC charge. That argument is also unpersuasive, because nowhere

in the complaint does Plaintiff allege that she was actually entitled to any such benefits.

See E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490, 501 (6th Cir. 2006)

(holding that plaintiff suffered no adverse employment action when employer did not pay

her the severance benefits, to which she was not otherwise entitled, when she refused to

sign a separation agreement).

Having determined that First Data, Bisignano and Ording are entitled to dismissal

of Plaintiff’s retaliation claims for the reasons stated, the undersigned declines to reach

the additional argument that Bisignano and Ording cannot be held liable because they

are individuals. But see Parker v. Strawser Constr., Inc., 307 F.Supp. 3d 744, 752 (S.D.

Ohio 2018) (suggesting that, under appropriate circumstances, individuals may be held

liable for retaliation claims under Ohio law)

5. Constructive Discharge Under ADA/Title VII/PDA/OCRA (Count VI)

constructive discharge “is not itself a cause of action.” (Doc. 19 at 20). Plaintiff concedes

that point in her response. Nevertheless, Plaintiff asserts that she has stated a claim

because First Data deliberately created an “intolerable” work environment that forced her

to resign. More specifically, Plaintiff alleges that “with respect to the ORA, Title VII, PDA,

ADA failure to accommodate, FMLA failure to notify of eligibility, the discriminatory

atmosphere created by Ording and First Data, termination of Barger while he was on

approved leave of absence, all illegal, made Kelly’s working conditions so difficult and

unpleasant that resignation was her only choice.” (Id. at ¶303).

To the extent that Plaintiff is attempting to assert either a separate “retaliation” or

a discrimination claim based upon the creation of intolerable working conditions, her

allegations fall short of the requisite standard.

“To demonstrate constructive discharge, a plaintiff must adduce evidence

to show that (1) the employer deliberately created intolerable working

conditions, as perceived by a reasonable person, (2) the employer did so

with the intention of forcing the employee to quit, and (3) the employee

actually quit.” Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012) (internal

quotation marks and alterations omitted) (quoting Moore v. KUKA Welding

Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999)). “To determine if

there is a constructive discharge, both the employer’s intent and the

employee’s objective feelings must be examined.” Id. (quoting Moore, 171

F.3d at 1080).

See Russell v. CSK Auto Corp., 739 Fed. Appx. 785, 794 (6th Cir. 2018) (evaluating

construction discharge as an “adverse action” in the context of an FMLA retaliation claim).

The type of proof required to show constructive discharge is high. See Groening v. Glen

Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018); see also Cleveland v. S. Disposal

Waste Connections, 491 Fed. Appx. 698, 708 (6th Cir. 2012) (disparaging comments

isolated to only a few incidents and by a few individuals do not alter working conditions).

courts consider whether the employee was demoted, had a reduction in salary or job

duties, was reassigned to menial or degrading work, or otherwise badgered, harassed, or

humiliated. Russell, 739 Fed. Appx. at 794-795.

Plaintiff alleges that she quit her job but includes no allegations of objectively

“intolerable” conditions that would support the other elements of her claim. Plaintiff does

not suggest she was subjected to a pattern of discriminatory comments, or demoted.

Instead, Ording promoted her and gave her a raise. Plaintiff complains of no conditions

other than the enforcement of an otherwise neutral “no-work-from-home” policy and the

allegedly “illegal” termination of Plaintiff’s former supervisor, an isolated incident that

occurred in early January 2017.16 Even assuming that the Defendants violated the ADA

by refusing to reasonably accommodate Plaintiff’s disability, the undersigned finds no

authority to suggest that condition would be so “intolerable” as to state a separate claim

beyond the failure to accommodate claim.

6. Emotional Distress and Eavesdropping/Invasion of Privacy Claims

(Counts VII and VIII)

For the convenience of this Court, the motion of First Data, Bisignano and Ording

has been discussed separately. However, with respect to Plaintiff’s claims for the

negligent, reckless, and intentional infliction of emotional distress claims (Count VII) and

her eavesdropping/invasion of privacy claims (Count VIII), all Defendants are entitled to

dismissal on the same grounds. Therefore, for the reasons discussed above, First Data,

Bisignano and Ording are entitled to dismissal of these claims.

16Contradicting her reference to Barger’s termination, Plaintiff repeatedly argues that the retaliation against

her did not begin until May 2018, long after that event. (See Doc. 29 at 13,“[I]t was when I sought counsel

that First Data started retaliating.”; see also id. at 12, “[W]hen my counsel wrote, the retaliation started.”).

IV. Conclusion and Recommendations

Accordingly, IT IS RECOMMENDED THAT the two motions to dismiss filed by the

law firms and lawyers (Docs. 17, 22) be GRANTED IN FULL, and that the motion to

dismiss filed by Defendants First Data, Bisignano, and Ording (Doc. 19) be GRANTED

IN PART, with all claims to be dismissed against those three Defendants other than

Plaintiff’s ADA and Ohio law claims against First Data (alone) for its “failure to

accommodate” Plaintiff’s alleged need to work from home. Discovery should proceed

solely on that claim. If a reviewing court should disagree with the recommendation to

dismiss Plaintiff’s claim for eavesdropping/invasion of privacy (Count VIII) under Rule

12(b)(6), the undersigned alternatively recommends that summary judgment be granted

to all Defendants on that claim.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JULIE KELLY,

Case No: 1:19-cv-372

Plaintiff, Cole, J.

v. Bowman, M.J.

FIRST DATA CORPORATION, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).