Baetzel v. Home Instead Senior Care

• Decision Date: 17 May 2005
• Docket Number: No. 1:04 CV 0119.,1:04 CV 0119.
• Citation: 370 F.Supp.2d 631
• Parties: Jolie BAETZEL, Plaintiff, v. HOME INSTEAD SENIOR CARE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

Page 631

370 F.Supp.2d 631

Jolie BAETZEL, Plaintiff, v. HOME INSTEAD SENIOR CARE, et al., Defendants.

No. 1:04 CV 0119.

United States District Court, N.D. Ohio, Eastern Division.

May 17, 2005.

Jihad M. Smaili, Jihad M. Smaili, Esq., L.L.C., Matthew R. Basinger, Jihad M. Smaili, Esq., L.L.C., Cleveland, for Plaintiff.

Defendant Home Instead Senior Care, David D. Ernst, Pansing Hogan Ernst & Bachman, Lisa M. Meyer, Pansing, Hogan, Ernst & Bachman LLP, Omaha, NE, Steven J. Miller, Goodman Weiss Miller, Defendant GEO Care, Inc., doing business as Home Instead Senior Care, Steven B. Potter, Dinn, Hochman, Potter & Levy, Cleveland, for Defendants.

MEMORANDUM AND ORDER GRANTING DEFENDANT HOME INSTEAD, INC'S. MOTION FOR DISMISSAL AND SUMMARY JUDGMENT

WELLS, District Judge.

Plaintiff Jolie Baetzel ("Baetzel") brought this action pursuant to Title VII and Ohio state statutory and common law to remedy claims of sexual harassment, retaliation, intentional infliction of emotional distress, and wrongful discharge against defendants Home Instead, Inc. ("Home Instead"), GEO Care, Inc. ("GEO Care") and Geoffrey Moore ("Mr.Moore"). (Docket # 1). Ms. Baetzel was employed as a Community Service Representative for GEO Care, a franchise operation owned by Mr. Moore in North Olmsted, Ohio providing non-medical companionship and domestic care services for the elderly. Mr. Moore and GEO Care operate, through agreement, as a franchisee of franchisor Home Instead based in Omaha, Nebraska.

Prior to the instant Order, Home Instead filed a Motion to Dismiss and a Memorandum in Support of that motion (Dockets # 36, 37) to which Ms. Baetzel responded in opposition. (Docket # 41). Home Instead filed a reply. (Docket # 44). This Court issued an Order to convert Home Instead's Motion to Dismiss into a Motion for Summary Judgment and invited the parties to supplement their existing briefs on the threshold issue of whether franchisor Home Instead stood in the shoes of an employer with regard to Ms. Baetzel. (Docket # 59). Both parties responded, with Ms. Baetzel filing a supplemental brief (Docket # 64) and Home Instead filing a replacement memorandum. (Docket # 66).

Ms. Baetzel maintains that together, Home Instead and GEO Care constitute a single employer, while Home Instead considers Ms. Baetzel an exclusive employee of GEO Care. Home Instead also urges this Court to consider Ms. Baetzel's failure to include Home Instead in her complaints to the Ohio Civil Rights Commission ("OCRC") and Equal Employment Opportunity Commission ("EEOC") as a jurisdictional bar because Home instead does not share a clear identity of interest with GEO Care sufficient to provide notice. Ms. Baetzel responds she intended to include Home Instead in her state and federal discrimination charges and listed GEO Care dba Home Instead Senior Care, which is the franchise name.

For the reasons set forth below, this Court finds that Home Instead was not Ms. Baetzel's employer. Accordingly, this Court grants Home Instead's motion for summary judgment against Ms Baetzel's gender discrimination and harassment claims under federal and state law. This Court also dismisses with prejudice Ms. Baetzel's state law claims of wrongful discharge and intentional and negligent infliction of emotional distress against defendant Home Instead.

I. BACKGROUND

A. The relationship between Home Instead and GEO Care.

Home Instead is a Nebraska corporation based in Omaha which franchises the operation of non-medical companionship and domestic care services for the elderly utilizing standards and procedures, trademarks, domain names, service marks and other commercial symbols under the name of "Home Instead Senior Care." (Affidavit of Jeffrey Huber ¶ 3). On 9 November 1998, Home Instead entered into a standard franchise agreement ("Agreement") with Mr. Moore as the sole shareholder of GEO Care, to own and operate a Home Instead Senior Care in North Olmsted, Ohio. (Huber Aff. ¶ 3).

The Agreement required GEO Care to comply with the material terms of the Agreement including prescribed formats of practices and procedures of providing senior care service referred to by Home Instead as "the System." (Huber Aff. ¶ 13). The Agreement also required regular royalty payments from GEO Care to Home Instead as well as fidelity to the representation of the franchise through certain trademarks and symbols owned by Home Instead. (Huber Aff. ¶ 6).

The evidence is uncontroverted that through the Agreement, Home Instead provided training to Mr. Moore regarding the operation of GEO Care's Home Instead Senior Care franchise. (Huber Aff. ¶ 13). Home Instead maintains that all obligations related to the day-to-day operations of the franchise, and particularly employment decisions, were entirely GEO Care's responsibility and that pursuant to the Agreement, GEO Care had the right to operate its business in the manner that it chose within the parameters established by the material terms of the Agreement. (Huber Aff. ¶ 12, 21, 16, 27, 29, 30).

Ms. Baetzel maintains that Home Instead and GEO Care exhibited an interrelation of operations such that they should be considered a single-employer for liability purposes. As evidence of that interrelationship, Ms. Baetzel provides the Operations Manual ("Manual") utilized by Mr. Moore in his training at the advent of his purchase of a franchise in North Olmsted. (Plaintiff's Supplemental, Exhibit O). The Manual covers such topics as service and pricing, recruitment, training, advertising and public relations, service inquiries, administration, marketing and supplies. (Plaintiff's Memo in Opposition, Exhibit A-5). With regard to recruitment, the Manual provides sample interview forms and questions, employment agreements, generic employment policies, and position descriptions. (Plaintiff's Opposition, Exhibits A-1 through A-4).

Home Instead insists that the information provided to Mr. Moore through the Manual was merely advisory in nature and not binding on how Mr. Moore chose to operate the GEO Care franchise. (Huber Aff. ¶ 13; Moore Aff. ¶ 16, 27, 29, 30). Mr. Moore maintains that he retained total discretion over: the hiring, disciplining and firing of all employees; evaluating employee performance, including decisions concerning awards, promotions, demotions, and terminations; directing employee scheduling, work assignments and training; and approving vacations and leave time. (Moore Aff. ¶ 13).

B. Ms. Baetzel's termination from GEO Care.

According to the plaintiff's complaint, Geoffrey Moore hired Ms. Baetzel on 16 November 2002 to fill the position of Community Service Representative/Care Coordinator at GEO Care in North Olmsted, Ohio. (Plaintiff's Complaint ¶ 6; Affidavit of Geoffrey Moore ¶ 6). Mr. Moore terminated Ms. Baetzel on 27 May 2003. Id.

Subsequent to her termination, on 13 July 2003, Ms. Baetzel filed a charge of sexual discrimination and retaliation with the OCRC against Mr. Moore and GEO Care dba Home Instead Senior Care. (Plaintiff's Complaint ¶ 8). The OCRC charge brought by Ms. Baetzel did not name the franchisor, Home Instead, Inc. (Baetzel Affidavit ¶ 2). Mr. Moore did not provide a copy of Ms. Baetzel's OCRC charge to Home Instead and did not discuss the charge with the franchisor. (Moore Aff. ¶ 33). On 8 January 2004, the OCRC closed Ms. Baetzel's charge in response to her request for a withdrawal of charges from the OCRC so that she might receive a Notice of Right to Sue on her discrimination charge from the EEOC. (Plaintiff's Complaint, Exhibit A). Ms Baetzel filed suit in this case on 23 January 2004 and received a Notice of Right to Sue from the EEOC on 4 Jun 2004. Id.

Ms. Baetzel brings five causes of action against Mr. Moore, Geo Care and Home Instead, Inc. for: (1) violating Title VII of the 1964 Civil Rights Act and Title I of the 1991 Civil Rights Act, (2) the Ohio Fair Employment Practices Law, (3) for the intentional inflection of emotional distress, (4) retaliation, and (5) wrongful discharge. In her Complaint, Ms. Baetzel recounts that after Mr. Moore hired her on behalf of his franchise, GEO Care, he initiated unwanted sexual advances toward her in the workplace and terminated her when she rebuffed those advances. (Complaint ¶¶ 9-14; Baetzel Deposition 84:11). The evidence indicates that Ms. Baetzel did not complain of Mr. Moore's treatment to anyone at Home Instead. (Baetzel Depo. 84:13; Baetzel Aff. ¶ 8, 9). Additionally, there exists no controversy in the evidence that Mr. Moore supervised Ms. Baetzel's activities (Moore aff. ¶ 13), paid her from a GEO Care account (Moore Aff. ¶¶ 6, 14), made the decision to terminate her (Moore Aff. ¶¶ 6, 18), and did not discuss Ms. Baetzel's employment, job performance or termination with anyone from Home Instead. (Moore Aff. ¶ 18).

II. SUMMARY JUDGMENT STANDARD

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth...