Wright v. General Engine Products, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KYLE WRIGHT, Case No. 1:19-cv-885

Plaintiff, McFarland, J.

Litkovitz, M.J.

vs.

GENERAL ENGINE

PRODUCTS, LLC, et al., REPORT AND

Defendants. RECOMMENDATION

Plaintiff Kyle Wright brings this action against defendants General Engine Products, LLC

(“GEP”) and Joshua Lansdale alleging discrimination in employment and other claims. This

matter is before the Court on defendants’ motion to partially dismiss plaintiff’s claims (Doc.11),

plaintiff’s response in opposition (Doc. 12), and defendants’ reply memorandum (Doc. 13).

I. Factual Allegations

The complaint alleges the following facts. Plaintiff was employed with GEP as a

Military Engine Technician from 2004 until September 29, 2017. Plaintiff was a member of the

IUE-CWA Amalgamated Local Union No. 84755 and was subject to a collective bargaining

agreement. At all relevant times, plaintiff has been a Type 1 brittle diabetic. Plaintiff’s

condition requires that he wear a subcutaneous insulin pump and maintain his blood sugar levels.

Plaintiff took all necessary precautions to control his diabetes so as to not interfere with the

performance of his work for GEP.

On January 14, 2016, plaintiff suffered a diabetic seizure while at work. Plaintiff was

administered a glucagon injection and taken to the emergency room. The emergency room

physician cleared plaintiff to return to work immediately following his discharge from the

emergency room. Plaintiff returned to GEP that same day and presented his employer with a

medical clearance and authorization to return to work. GEP refused to allow plaintiff to return to

work and sent him home with instructions not to enter GEP’s premises. Plaintiff was placed on

administrative leave and instructed to not return to work.

On January 15, 2016, plaintiff’s primary care physician confirmed plaintiff was able to

return to work with no restrictions. Plaintiff advised GEP, which continued to prohibit plaintiff

from returning to work or otherwise entering GEP’s premises. Plaintiff obtained a third return to

work confirmation from his endocrinologist on January 19, 2016, but again GEP prohibited

plaintiff’s return to work.

Plaintiff was then evaluated by Dr. Richard Hoback, a physician chosen by GEP.

Plaintiff alleges that GEP misrepresented the following to Dr. Hoback: plaintiff’s job required

him to “climb”; plaintiff’s diabetic condition caused him to display “violent tendencies”; and

plaintiff’s hypoglycemic reactions occurred “frequently” during his employment. Dr. Hoback

likewise concluded that there was no reason plaintiff could not return to work. Nevertheless,

GEP refused to allow plaintiff to return to work for four months.

On May 18, 2016, GEP required plaintiff to sign an “Agreement Regarding Employee

Health and Safety” as an express condition precedent to his return to work. The Agreement

constituted terms of plaintiff’s continued employment, the violation of which could result in his

termination. The Agreement provided that “as a condition of continued employment” with GEP,

plaintiff was required to: (a) wear an insulin sensor and pump during work periods; (b) ensure

the insulin device is calibrated; (c) show his supervisors upon request that he is wearing the

insulin device; (d) make information regarding his diabetic condition available upon request; (e)

notify GEP if there is reason to believe the insulin device is an inadequate safeguard; (f) perform

finger-stick tests before and during work; (g) notify a supervisor immediately upon detecting

symptoms that would indicate a diabetic reaction; and (h) “keep close at hand: (i) a supply of

food and drink that he reasonably determines is adequate to address a hypoglycemic reaction;

and (ii) a complete glucagon syringe kit, including full vials of saline and glucose.” (Doc. 5 at

6). Plaintiff avers that had he not signed the Agreement, GEP would have terminated his

employment. Plaintiff alleges that the Agreement created new terms of employment between

plaintiff and GEP, terms that did not exist during his previous 12 years of employment with

GEP. He further alleges the Agreement imposed additional obligations on him that other

similarly-situated employees were not required to adhere to as a condition of their continued

employment. Plaintiff alleges the Agreement “vitiated” his rights and GEP’s obligations under

the collective bargaining agreement between GEP and plaintiff’s union.

Pursuant to the Agreement, plaintiff kept a supply of food and drink in his work locker.

On or about August 7, 2017, plaintiff experienced symptoms of low blood sugar and went to his

locker for his food and drink. He discovered that his locker and supplies had been ransacked and

vandalized, precluding plaintiff from accessing the items he needed to manage his diabetic

condition. That same day, plaintiff submitted a written statement to GEP’s Human Resources

Department, explaining that his diabetic supplies had been vandalized.

Two days after plaintiff reported the incident, GEP placed plaintiff on administrative

leave, alleging that a co-worker, defendant Lansdale, had filed for a civil protection order against

plaintiff. Plaintiff alleges, upon information and belief, that defendant Lansdale was the

individual who ransacked and vandalized plaintiff’s locker. Following a hearing on defendant

Lansdale’s petition, at which counsel for GEP was present, a court denied the petition for a civil

protection order as without merit. However, GEP still prohibited plaintiff from returning to work

and placed plaintiff on leave.

GEP terminated plaintiff’s employment on September 29, 2017, for purportedly making

certain statements and using curse words or profanity after plaintiff discovered his diabetic

supplies had been ransacked and vandalized. Plaintiff alleges that during the relevant time of his

employment, similarly-situated employees, including defendant Lansdale, made similar

statements and engaged in similar conduct while in the workplace but were not placed on leave

or terminated for using curse words or profanity.

The complaint further alleges that the decision to terminate plaintiff was in retaliation for

reporting his diabetic supplies had been vandalized, and it was for the purpose of interfering with

his right to participate in GEP’s healthcare plan and improperly evade the health insurance

costs associated with managing his disability.

Plaintiff alleges that by terminating his employment, GEP discriminated against him on

the basis of his disability, retaliated against him for reporting vandalism, and interfered with his

right to participate in GEP’s healthcare plan to avoid paying the costs associated with his

medical condition. Plaintiff alleges seven claims for relief: (I) discrimination in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Ohio Rev. Code §

4112; (II) retaliation; (III) wrongful discharge; (IV) a violation of § 510 of the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140; (V) a violation of the

Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), 29 U.S.C. 1161, et seq.;

(VI) civil conspiracy; and (VII) intentional infliction of emotional distress (“IIED”).

II. Defendants’ motion to dismiss

Defendants move to partially dismiss plaintiff’s complaint pursuant to Fed. R. Civ. P.

12(b)(6) on the ground the complaint fails to state a claim upon which relief can be granted.

(Doc. 11). In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual

allegations as true and make reasonable inferences in favor of the non-moving party. Keys v.

Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575

(6th Cir. 2005)). Only “a short and plain statement of the claim showing that the pleader is

entitled to relief” is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he statement need only

give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id.

(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not

plead specific facts, the “[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.” Id. (quoting

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.” Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Defendants request dismissal of plaintiff’s ADA discrimination (Count I) and ADA

retaliation (Count II) claims because plaintiff failed to exhaust his administrative remedies; the

Ohio Rev. Code § 4112 discrimination claim (Count I) as it relates to the Agreement and

plaintiff’s administrative leave because such actions are not “adverse”; the Ohio Rev. Code §

4112 retaliation claim (Count II) for failure to state a claim for relief; the wrongful discharge

claim (Count III) because plaintiff was not an at-will employee; the ERISA claim (Count IV) as

speculative; the conspiracy claim (Count VI) for failure to state a claim for relief; and the

intentional infliction of emotional distress claim (Count VII) for failure to state a claim for relief.

III. Resolution

A. ADA discrimination (Count I) and ADA retaliation (Count II) claims

Plaintiff has not responded to defendants’ motion to dismiss his ADA discrimination

(Count I) and ADA retaliation (Count II) claims on the basis he failed to exhaust his

administrative remedies. “A plaintiff seeking to bring employment discrimination claims under

the ADA must first exhaust administrative remedies, and failure to properly exhaust is an

appropriate basis for dismissal of an ADA action.” Jones v. Nat. Essentials, Inc., 740 F. App’x

489, 492 (6th Cir. 2018) (citing Mayers v. Sedgwick Claims Mgmt. Servs., Inc., 101 F. App’x

591, 593 (6th Cir. 2004) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). As

plaintiff has failed to contest the dismissal of these claims based on the failure to exhaust

administrative remedies, defendants’ motion to dismiss these claims should be granted.

B. Ohio Rev. Code § 4112 discrimination claim (Count I) as it relates to the

Agreement and plaintiff’s administrative leave of absence

Ohio Rev. Code § 4112.02 prohibits discrimination on the basis of disability.1

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Defendants seek dismissal of plaintiff’s Ohio Rev. Code § 4112 discrimination claim (Count I)

as it relates to the Agreement and his leave of absence on the basis that neither amounts to an

adverse employment action. To establish a circumstantial case of disability discrimination under

the McDonnell Douglas burden shifting paradigm, plaintiff must show, inter alia, that he suffered

an adverse employment action. Plaintiff must show that defendant GEP took an adverse

employment action against him, at least in part, because he is disabled. Witte v. Rippe &

1 Section 4112.02 of the Ohio Revised Code states in relevant part:

It shall be an unlawful discriminatory practice: (A) For any employer, because of the . . . disability . . . of

any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that

person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or

indirectly related to employment.

Ohio Rev. Code § 4112.02(A).

Kingston Sys., Inc., 358 F. Supp. 2d 658, 670 (S.D. Ohio 2005) (citing Columbus Civil Serv.

Comm. v. McGlone, 697 N.E.2d 204, 206 (Ohio 1998)). See also Gecewicz v. Henry Ford

Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir. 2012) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 804 (1973); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 417 (6th

Cir. 2004)).2 An adverse action is one that constitutes a “materially adverse change in the terms

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of or conditions of . . . employment because of [the] employer’s conduct.” Talley v. Family

Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008) (citations omitted). The

challenged action must “constitute[] a significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits.” Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599,

607 (6th Cir. 2019) (quotation omitted). Defendants argue that requiring plaintiff to sign and

adhere to the Agreement and placing plaintiff on a leave of absence do not rise to the level of an

adverse action for purposes of a prima facie case of disability discrimination.

At the pleading stage, however, plaintiff need not allege all of the elements of a prima

facie case of disability discrimination under the McDonnell Douglas framework to state a claim

for relief. “The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a

pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). Thus, plaintiff

is not required to allege facts to establish a prima facie case under the McDonnell Douglas

2 “The essential elements of a claim brought under the ADA and the Ohio handicap [disability] discrimination

statute are the same. Therefore, the case law regarding claims brought under the ADA applies equally to claims

brought under the Ohio statute.” Hoffman v. Fidelity Brokerage Servs., Inc., 959 F. Supp. 452, 457 n. 1 (S.D. Ohio

1997) (citation omitted); McGlone, 697 N.E.2d at 206-07 (“The federal [ADA] is similar to the Ohio handicap

discrimination law. . . . We can look to regulations and cases interpreting the federal Act for guidance in our

interpretation of Ohio law.”). See also Dage v. Time Warner Cable, 395 F. Supp. 2d 668, 680 (S.D. Ohio 2005) (“In

interpreting section 4112 claims, courts may refer to the often-analogous law on employment discrimination claims

under the Americans with Disabilities Act.”) (citing Swanson v. University of Cincinnati, 268 F.3d 307, 314 (6th

Cir. 2001)).

framework at the pleading stage to state a claim for relief for employment discrimination. Id.

See also Keys v. Humana, Inc., 684 F. 3d 605 (6th Cir. 2012). At this early stage in the

proceedings, the Court need only consider whether plaintiff’s complaint sufficiently states a

plausible claim for relief for purposes of Rule 12(b)(6) and not whether plaintiff has made out a

prima facie case of discrimination based on indirect evidence. “If a reasonable court can draw

the necessary inference from the factual material stated in the complaint, the plausibility standard

has been satisfied.” Keys, 684 F.3d at 610. Nevertheless, a plaintiff “must allege ‘sufficient

factual’ content from which a court, informed by its ‘judicial experience and common sense,’

could ‘draw the reasonable inference’” that defendants discriminated against him because of his

disability. Id. (quoting Iqbal, 556 U.S. at 678-79).

Plaintiff’s complaint contains sufficient factual content that states a plausible claim for

relief for disability discrimination, regardless of whether he alleges that the Agreement and leave

of absence constitute “adverse actions” for purposes of a prima facie case. The complaint alleges

that following a diabetic seizure in January 2016, plaintiff was placed on administrative leave3

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despite the opinions of four physicians that he was fit for duty; he was required to sign an

Agreement that ostensibly altered his work terms as a condition precedent to his return to work;

and he was ultimately terminated following a verbal incident concerning the vandalism of his

diabetic food and supplies by defendant Lansdale, a co-worker, and his reporting of the incident

3 Defendants contend that plaintiff’s complaint fails to allege whether his administrative leave was with or without

pay, and therefore his leave cannot constitute an adverse action. However, when addressing a similar issue on a

motion to dismiss, the Sixth Circuit determined that the failure of the plaintiff to allege whether a suspension was

with or without pay was not dispositive. Smith v. City of Salem, Ohio, 378 F.3d 566, 576 n.1 (6th Cir. 2004). “A

‘materially adverse change’ in employment conditions often involves a material loss of pay or benefits, but that is

not always the case, and ‘other indices that might be unique to a particular situation’ can constitute a ‘materially

adverse change’ as well. . . . Because no discovery has been conducted yet, we do not know the full contours of the

suspension. For now, . . . we find that Smith has sufficiently alleged an adverse employment action.” Id. Under

Smith, it would be premature to dismiss or limit plaintiff’s disability discrimination claim based on plaintiff’s failure

to state whether his leave was with or without pay.

to human resources. The complaint also alleges that he was treated differently than his non-

disabled counterparts who were not required to sign an Agreement as a condition of continued

employment or who engaged in similar verbal conduct and were not terminated or disciplined.

Plaintiff’s complaint satisfies the Rule 8(a) requirement of a short and plain statement providing

defendants with fair notice of the grounds for his disability discrimination claim. Defendants’

motion to dismiss plaintiff’s disability discrimination claim on the basis of his alleged failure to

allege the “adverse action” element of a prima facie case with respect to the Agreement and

leave should be denied.4

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C. Ohio Rev. Code § 4112 retaliation claim (Count II)

Defendants allege that plaintiff’s Ohio Rev. Code § 4112 retaliation claim (Count II)

should be dismissed because plaintiff has failed to allege that he engaged in any protected

activity, an essential element of a retaliation claim.

Ohio law prohibits discrimination “in any manner against any other person because that

person has opposed any unlawful discriminatory practice. . . .” Ohio Rev. Code § 4112.02(I).

Plaintiff’s complaint alleges:

Defendant GEP’s aforementioned actions, including but not limited to, placing

Plaintiff on administrative leave, and ultimately terminating him, after Plaintiff

raised reasonable concerns of workplace safety and disability discrimination when

he reported to Human Resources the incident in which Plaintiff’s diabetic supplies

had been vandalized by a co-worker, constitute retaliation.

(Doc. 5, ¶ 62).

4 The cases cited by defendants are distinguishable as they were resolved on motions for summary judgment and not

pre-discovery motions to dismiss. As noted by the Supreme Court in Swierkiewicz, “it is not appropriate to require a

plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in

every employment discrimination case” and can vary depending on the context and before discovery has unearthed

the relevant facts and evidence. Id. at 511, 512. Indeed, the McDonnell Douglas circumstantial evidence

framework may not even come into play where discovery reveals direct evidence of discrimination. Id.

Defendants contend that paragraph 62 is not supported by the facts alleged in paragraph

38 of the complaint – that plaintiff complained to management that his locker was vandalized –

because it does not allege that plaintiff’s locker was vandalized “because of” his alleged

disability, and a complaint of vandalism is not the same as a complaint about discrimination.

Again, plaintiff’s complaint need not allege a prima facie case of retaliation to withstand

defendants’ motion to dismiss. Rather, his complaint must contain “sufficient factual content

from which a court, informed by its judicial experience and common sense, could draw the

reasonable inference” that defendants retaliated against him because he complained about the

destruction of his diabetic supplies, supplies which he was required to maintain as a mandatory

condition of his continued employment with GEP. Crowder v. Railcrew Xpress, 557 F. App’x

487, 493 (6th Cir. 2014) (“The district court held that Crowder’s complaint ‘f[ell] short of her

burden to establish a prima facie case for her retaliation claims.’ This was error.”); Keys, 684

F.3d at 609 (“The district court’s requirement that Keys’s complaint establish a prima facie case

under McDonnell Douglas and its progeny is contrary to Supreme Court and Sixth Circuit

precedent.”).

Given the standard governing a motion to dismiss, the Court finds plaintiff’s complaint

states a plausible claim for retaliation. Twombly, 550 U.S. at 570. The Court may draw a

reasonable inference that defendants retaliated against plaintiff when he complained to the

Human Resources Department that his locker containing his diabetic supplies, which he was

contractually bound to maintain as a condition of his employment, had been ransacked and

vandalized, precluding him from utilizing those supplies to stabilize his blood sugar levels.

(Doc. 5, ¶¶ 36-38). The complaint alleges that two days later, plaintiff was placed on

administrative leave by GEP, purportedly because a petition for a civil protection order was filed

against plaintiff by defendant Lansdale, who on information and belief, was the individual

responsible for the vandalism of plaintiff’s diabetic supplies. (Id., ¶ 38). However, even when

the petition for a protection order was dismissed as without merit and in plaintiff’s favor,5 GEP

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continued to prohibit plaintiff from returning to work and terminated his employment one month

later. (Id., ¶¶ 42-43, 46). Plaintiff’s complaint contains sufficient factual content from which

this Court could draw the reasonable inference that defendants retaliated against plaintiff for his

complaint to the GEP’s Human Resources Department. Crowder, 557 F. App’x at 493.

Defendants’ motion to dismiss plaintiff’s Ohio Rev. Code § 4112 retaliation claim should be

denied.

D. Wrongful discharge claim (Count III)

Defendants allege that plaintiff’s wrongful discharge claim should be dismissed because

plaintiff was not an at-will employee, but instead he was a member of a union who was subject

to a collective bargaining agreement. Defendants argue that under relevant Sixth Circuit and

Ohio Supreme Court precedent, union members whose employment is governed by a collective

bargaining agreement cannot bring wrongful discharge claims. (Doc. 11-1 at 6, citing Staunch v.

Continental Airlines, Inc., 511 F.3d 625 (6th Cir. 2008); Haynes v. Zoological Soc’y of

Cincinnati, 652 N.E.2d 948, 951 (Ohio 1995)).

The employment at-will doctrine provides that “a general or indefinite hiring is

terminable at the will of either the employee or the employer” and “a discharge without cause

does not give rise to an action for damages.” Wiles v. Medina Auto Parts, 773 N.E.2d 526, 529

(Ohio 2002). In Greeley v. Miami Valley Maint. Contractors, Inc., 551 N.E.2d 981 (Ohio 1990),

the Ohio Supreme Court established a public policy exception to the employment at-will

5 The complaint alleges that counsel for GEP attended the hearing at which the petition was denied. (Doc. 5, ¶ 43).

Therefore, the Court may reasonably infer that GEP had notice of the court’s decision denying the petition.

doctrine. Id. at 986. The Court stated that “the right of employers to terminate employment at

will for ‘any cause’ no longer includes the discharge of an employee where the discharge is in

violation of a statute and thereby contravenes public policy,” thereby recognizing a cause of

action for such terminations. Id. at 987.

Nevertheless, a wrongful discharge claim based on public policy will not lie where the

employee is a member of a union whose terms of employment are governed by a collective

bargaining agreement which limits the employer’s ability to terminate an employee. “The

Supreme Court of Ohio has held that a union employee is not an employee-at-will, and therefore,

cannot state a claim for wrongful termination in violation of Ohio public policy.” Williams v.

United Steel Workers of Am., No. 1:09-cv-743, 2010 WL 909883, at *6 (S.D. Ohio Mar. 10,

2010) (citing Haynes v. Zoological Soc. of Cincinnati, 652 N.E.2d 948 (1995); Staunch, 511 F.3d

at 632). In Haynes, the Ohio Supreme Court stated:

Greeley provides an exception to the employment-at-will doctrine. Thus, . . . in

order for an employee to bring a cause of action pursuant to Greeley, supra, that

employee must have been an employee at will. The identifying characteristic of an

employment-at-will relationship is that either the employer or the employee may

terminate the employment relationship for any reason which is not contrary to law.

Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d

150; Boggs v. Avon Products, Inc. (1990), 56 Ohio App. 3d 67, 564 N.E.2d 1128.

Haynes clearly does not qualify as an employee at will. As a member of a union,

the terms of her employment relationship were governed by a collective bargaining

agreement. That agreement specifically limited the power of the zoo to terminate

Haynes and, as a result, took her outside the context of employment at will.

Because she was not an employee at will, she is outside the class of employees for

whom Greeley provides protection.

Haynes, 652 N.E.2d at 951. The Sixth Circuit and this Court have consistently relied upon

Haynes to dismiss public policy wrongful discharge claims brought by former union members.

See, e.g., Staunch, 511 F.3d at 632 (“Staunch cannot maintain a claim for wrongful discharge in

violation of Ohio’s public policy because she was not employed at will, but was employed

pursuant to the terms of a collective bargaining agreement.”); Klepsky v. United Parcel Serv.,

489 F.3d 264, 271 (6th Cir. 2007) (“[B]ecause Klepsky is not an at-will employee, we affirm the

district court's dismissal of Klepsky’s [public policy] claim pursuant to Haynes.” ); Lewis v.

Navistar Int’l Truck 7, No. 3:15-cv-11, 2016 WL 4376289, at *6 (S.D. Ohio Aug. 17, 2016) (“to

bring a Greeley action, one must be an employee at will; a member of a union cannot do so”

under Haynes); Williams, 2010 WL 909883, at *6 (“Williams cannot hold Steelcraft liable for

wrongful discharge in violation of public policy because he is a member of a union whose

employment was governed by a collective bargaining agreement.”); Pearson v. Ford Motor Co.,

747 F. Supp. 2d 966, 974 (S.D. Ohio 2010) (“as a union member Plaintiff was not an at-will

employee, and therefore, under the law he cannot assert a claim for wrongful discharge in

violation of public policy”).

Plaintiff’s complaint alleges that he was a member of the IUE-CWA Amalgamated Local

Union No. 84755, and subject to a collective bargaining agreement during the relevant time of

his employment. (Doc. 5, ¶ 7). As plaintiff was the member of a union whose employment was

governed by a collective bargaining agreement, his employment was not at-will, and he cannot

bring a claim for wrongful discharge in violation of public policy.6 Accordingly, defendants’

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motion to dismiss plaintiff’s wrongful discharge claim should be granted.

6 Green v. Land-O-Sun Dairies, LLC, No. 3:06-cv-2509, 2007 WL 1544588, at *5 (N.D. Ohio May 24, 2007), cited

by plaintiff, is inapposite. The court in Green recognized that the Ohio Supreme Court in Coolidge v. Riverdale

Local School Dist., 797 N.E.2d 61 (Ohio 2003) “created an exception to the Haynes bar in cases involving persons,

including union members, receiving temporary total disability workers compensation payments.” As noted by

Green, the “Coolidge court did not give a blanket extension to all employees covered by a CBA, but found that the

workers’ compensation system redefined the employment relationship.” Id. at *5 (citations omitted). Here, in

contrast, plaintiff has not alleged he is receiving benefits under the workers’ compensation system such that an

exception to Haynes applies. Nor has plaintiff pointed to other legal authority recognizing an exception to Haynes.

E. ERISA claim (Count IV)

Plaintiff alleges that GEP terminated his employment for the purpose of interfering with

his right to participate in its healthcare plan and to avoid paying his health insurance costs in

violation of ERISA. (Doc. 5, ¶¶ 49, 72). Defendants seek dismissal of this claim based on

plaintiff’s failure to allege facts showing GEP had the specific intent to violate ERISA.

Section 510 of ERISA states: “It shall be unlawful for any person to discharge . . . a

participant or beneficiary . . . for the purpose of interfering with the attainment of any right to

which such participant may become entitled” under an employee benefit plan. 29 U.S.C. § 1140.

To state a claim under § 510, the plaintiff must allege that the defendant had a “specific intent to

violate ERISA.” Smith v. Ameritech, 129 F.3d 857, 865 (6th Cir. 1997) (citing Humphreys v.

Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir. 1992)). “However, a court cannot infer specific

intent to violate ERISA from the mere fact that a plaintiff’s termination lessened his amount of

future benefits. Proof of specific intent is required to establish an ERISA § 510 violation

because the loss of benefits is incidental to every termination.” Williams, 2010 WL 909883, at

*7 (citing Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1113 (6th Cir. 2001)).

On a motion to dismiss, the Court must ask whether the facts, taken as true, permit an inference

that GEP discharged plaintiff for the purpose of interfering with his rights to medical benefits

under GEP’s ERISA plan. See Spangler v. E. Kentucky Power Coop., Inc., 790 F. App’x 719,

722 (6th Cir. 2019) (citing 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502,

505-06 (6th Cir. 2013); Bailey v. Enrichment Corp., 530 F. App’x 471, 477-78 (6th Cir. 2013)).

Plaintiff alleges that GEP’s intent to violate ERISA can be inferred from its “continued

discrimination against [plaintiff] based on his disability”; GEP’s different treatment of plaintiff

vis-à-vis similarly-situated employees; and GEP’s engaging “in such conduct intentionally and

maliciously.” (Doc. 12 at 16). Plaintiff’s allegations that GEP’s conduct was intentional and

malicious amount to legal conclusions, not factual allegations, and do not support his ERISA

claim. In addition, the fact that plaintiff may have suffered disability discrimination and was

treated differently than similarly-situated employees does not raise an inference that GEP

discharged him for the purpose of violating his ERISA rights. Otherwise, any discharged

employee with an employer-sponsored ERISA plan who stated a claim for relief for

discrimination would also necessarily state a claim for relief under ERISA § 510. Cf. Majewski,

274 F.3d at 1113. These allegations do not lead to the plausible inference that plaintiff was fired

for the purpose of preventing him from receiving medical benefits under GEP’s ERISA plan.

Finally, plaintiff contends that GEP’s conduct after he was terminated – allegedly

denying plaintiff the right to participate in its healthcare plan in violation of COBRA7 by

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delaying his receipt of COBRA insurance for 56 days – is indicative of GEP’s intent to deprive

plaintiff of his ERISA rights. Plaintiff has failed to identify a factual basis connecting the two

actions that would give rise to an inference that defendant had a specific intent to violate ERISA.

In the absence of additional factual allegations, plaintiff’s complaint fails to state a claim for

ERISA interference that is plausible as opposed to merely possible. Defendants’ motion to

dismiss plaintiff’s ERISA claim should be granted.

F. Conspiracy claim (Count VI)

Plaintiff alleges that defendants – GEP and Joshua Lansdale – conspired to bring about

his termination by, among other things, “instituting baseless civil protection proceedings against

7 COBRA provides, in relevant part:

The plan sponsor of each group health plan shall provide, in accordance with this part, that each

qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is

entitled, under the plan, to elect, within the election period, continuation coverage under the plan.

29 U.S.C. § 1161(a).

Plaintiff.” (Doc. 12, citing Doc. 5, ¶ 79). In Ohio, a state law civil conspiracy claim requires “a

malicious combination of two or more persons to injure another in person or property, in a way

not competent for one alone, resulting in actual damages.” Kenty v. Transamerica Premium Ins.

Co., 650 N.E.2d 863 (1995). “A civil-conspiracy claim requires the existence of a separate

underlying unlawful act.” Daudistel v. Vill. of Silverton, No. C-130661, 2014 WL 7358313

(Ohio Ct. App. Dec. 26, 2014) (citing Williams v. Aetna Fin. Co., 700 N.E.2d 859 (1998);

Gosden v. Louis, 687 N.E.2d 481 (Ohio Ct. App. 1996)).

Defendants seek dismissal of this claim under the intra-corporate conspiracy doctrine

because the alleged co-conspirators are members of the same collective entity and do not

constitute separate people to form a conspiracy. (Doc. 11-1 at 8). The intra-corporate

conspiracy doctrine provides:

It is basic in the law of conspiracy that you must have two persons or entities to

have a conspiracy. A corporation cannot conspire with itself any more than a

private individual can, and it is the general rule that the acts of the agent are the acts

of the corporation.

Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 510 (6th Cir.

1991) (quoting Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)).

See also Bays v. Canty, 330 F. App’x 594 (6th Cir. 2009) (“since a corporation only acts through

its officers, a group of corporate officers acting within the scope of employment cannot create a

conspiracy”).

Plaintiff contends that the exception to this general rule – where the employee acts

beyond the scope of his employment – applies in this case to defeat the intra-corporate

conspiracy defense. (Doc. 12 at 17, citing Daudistel, 2014 WL 7358313, at *9).

“Generally, when a plaintiff is alleging that an employee/agent conspired with his or her

employer, the plaintiff must show that the employee was acting outside the course and scope of

his corporate position in order to maintain a valid civil conspiracy claim.” Bailey v. Priyanka

Inc., No. 20437, 2001 WL 1192731 (Ohio Ct. App. Oct. 10, 2001) (citing Tandem Staffing v.

ABC Automation Packing, Inc., No. 19774, 2000 WL 727534 (Ohio Ct. App. June 7, 2000)).

“For an act to fall within the scope of employment, it must be calculated to facilitate or promote

the business for which the [employee] was employed.” Riotte v. Cleveland, 960 N.E.2d 496, 501

(Ohio Ct. App. 2011) (internal quotation marks omitted) (citing Osborne v. Lyles, 587 N.E.2d

825, 829 (Ohio 1992) (quoting Byrd v. Faber, 565 N.E.2d 584, 587 (Ohio 1991) (quoting Little

Miami RR. Co. v. Wetmore, 19 Ohio St. 110, 132 (1869)). See also Curry v. Blanchester, Nos.

CA2009-08-010, CA2009-08-012, 2010 WL 2807948, *6 (Ohio Ct. App. July 19, 2010) (“Ohio

courts have generally drawn from agency-law principles to hold that ‘conduct is within the scope

of employment if it is initiated, in part, to further or promote the master’s business.’”) (citing

Jackson v. McDonald, 760 N.E.2d 24, 28 (Ohio Ct. App. 2001); Chesher v. Neyer, 477 F.3d 784,

797 (6th Cir. 2007)).

Viewing the complaint in the light most favorable to plaintiff, as the Court must on a

motion to dismiss, plaintiff has alleged facts indicating that defendant Lansdale acted outside the

scope of his employment with GEP when he filed a petition for a civil protection order against

plaintiff. This is an act personal to him and not on behalf of his employer. Whether defendant

Lansdale’s actions were in fact calculated to facilitate or promote GEP’s business is a factual

issue that should be fleshed out during discovery. Defendants’ motion to dismiss plaintiff’s civil

conspiracy claim on the basis of the intra-corporate conspiracy doctrine should be denied.8

7F

8 Coleman v. United States, 91 F.3d 820 (6th Cir. 1996), cited by defendants, is not persuasive as it relies on the

construction of Kentucky state law in the context of the particular facts of that case.

G. Intentional infliction of emotional distress claim (Count VII)

Plaintiff brings a claim against defendants for intentional infliction of emotional distress

(“IIED”) based on his termination; the ransacking and vandalism of his locker, which prevented

his immediate access to his diabetic supplies; GEP’s delay in placing him on COBRA health

insurance; and GEP’s prohibition on his return to work or even entering the premises after the

court denied defendant Lansdale’s petition for a civil protection order. (Doc. 12 at 19, citing ¶¶

36, 44, 51). Defendants allege that plaintiff’s complaint fails to state a claim for relief for IIED

because he has not alleged that defendants’ conduct was extreme and outrageous or that plaintiff

suffered serious emotional anguish.

In Ohio, a plaintiff claiming intentional infliction of emotional distress must show the

following: (1) the defendant intended to cause plaintiff’s emotional distress or should have

known that such serious emotional distress would result, (2) the defendant’s conduct was

outrageous, extreme, beyond all possible bounds of decency, and utterly intolerable in a civilized

community, (3) the defendant’s conduct proximately caused the plaintiff’s psychic injury, and

(4) the plaintiff’s emotional distress was so serious that no reasonable person could be expected

to endure it. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir. 2008).

“Ohio courts have held that a party must act in an extreme and outrageous manner, a manner in

which if the story is told would extract the exclamation of ‘outrageous!’ from a reasonable

person.” Hall v. United Labs, Inc., 31 F. Supp. 2d 1039, 1044 (N.D. Ohio 1998) (citing Pyle v.

Pyle, 463 N.E.2d 98, 104 (Ohio Ct. App. 1983)).

The allegations of the complaint do not satisfy the element of extreme or outrageous

conduct so as to state an intentional infliction of emotional distress claim. As this Court has

noted:

[L]iability for intentional infliction of emotional distress “has been found only

where the conduct has been so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Yeager, 453 N.E.2d at 671.

“[A]n employee’s termination, even if based upon discrimination, does not rise to

the level of ‘extreme and outrageous conduct’ without proof of something more. If

such were not true, then every discrimination claim would simultaneously become

a cause of action for the intentional infliction of emotional distress.” Godfredson

v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999).

Day v. Nat’l Elec. Contractors Ass’n, 82 F. Supp. 3d 704, 709-10 (S.D. Ohio 2014). Plaintiff has

not alleged facts indicating conduct that a reasonable person could conclude is “beyond all

possible bounds of decency” or atrocious. Id. Therefore, the complaint fails to allege an

essential element of an IIED claim.

Second, even if the Court could find that defendants’ conduct was extreme and

outrageous, the complaint fails to allege that plaintiff has suffered serious emotional distress.

Serious emotional distress requires a showing of serious mental anguish:

“[T]he mental anguish suffered must be very serious-‘beyond trifling mental

disturbance, mere upset or hurt feelings.’ Paugh v. Hanks, 451 N.E.2d 759, 765

(Ohio 1983). Rather, the emotional injury must be ‘both severe and debilitating[]’

such that a reasonable person ‘would be unable to cope adequately with the mental

distress engendered by the circumstances of the case.” Id. (citations omitted).

“[S]ome examples of serious emotional distress . . . include traumatically induced

neurosis, psychosis, chronic depression, or phobia.’ Id. (citation omitted).”

Dean v. Norfolk S. Ry. Co., No. 4:13-cv-2622, 2015 WL 1423456, at *7 (N.D. Ohio Mar. 27,

2015), aff’d, No. 15-3446 (6th Cir. Apr. 6, 2016).

Plaintiff’s only factual allegations regarding emotional distress are set forth in ¶ 51 of the

complaint: “Defendant’s delay tactics caused Plaintiff a significant amount of stress as he began

to run dangerously low on his diabetic pump supplies while awaiting to exercise his COBRA

rights.” (Doc. 5, ¶ 51). Plaintiff alleges he waited 56 days before he was placed on GEP’s

medical insurance through COBRA. (Id., ¶ 50). The alleged emotional injury cannot be

characterized as both severe and debilitating such that a reasonable person would be unable to

cope adequately with the mental distress engendered by the loss of medical insurance for 56

days. Plaintiffs allegations, without more, are insufficient to state a claim for serious emotional

distress. See Mathur v. Meriam Process Techs., No. 1:10-cv-00121, 2010 WL 3211875, at *3

(finding no allegation of serious emotional distress because “‘[a]lthough the loss of employment

and medical insurance may be interpreted as severe, a reasonable person should be expected to

endure that pain.””) (Report and Recommendation), adopted, 2010 WL 3211872 (N.D. Ohio Aug.

11, 2010). The complaint fails to allege the requisite mental injury to state a claim for ITED.

Therefore, defendants’ motion to dismiss plaintiff's ITED claim should be granted.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that:

1. Defendants’ motion to dismiss be GRANTED on plaintiff's ADA discrimination and

ADA retaliation claims (Counts I and II), wrongful discharge claim (Count I), ERISA claim

(Count IV), and intentional infliction of emotional distress claim (Count VII).

2. Defendants’ motion to dismiss be DENIED on plaintiff's Ohio Rev. Code § 4112

discrimination claim as it relates to the Agreement and plaintiff’s leave of absence (Count I),

Ohio Rev. Code § 4112 retaliation claim (Count II), and conspiracy claim (Count VI).

Date: 5/18/2020 Hsin K Xethovt

Karen L. Litkovitz

United States Magistrate Judge

20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KYLE WRIGHT, Case No. 1:19-cv-885

Plaintiff, McFarland, J.

Litkovitz, M.J.

vs.

GENERAL ENGINE

PRODUCTS, LLC, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. 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).