Cox v. True North Energy, LLC, 1:07-cv-1372.

• Citation: 524 F.Supp.2d 927
• Decision Date: 20 November 2007
• Docket Number: No. 1:07-cv-1372.,1:07-cv-1372.
• Parties: Nancy COX, Plaintiff, v. TRUE NORTH ENERGY, LLC., Defendant.
• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

Page 927

524 F.Supp.2d 927

Nancy COX, Plaintiff, v. TRUE NORTH ENERGY, LLC., Defendant.

No. 1:07-cv-1372.

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

November 20, 2007.

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Iverson Matthew Jackson, Steven J. Forbes, Norchi & Associates, Beachwood, OH, for Plaintiff.

Julie A. Douglas, Erik G. Chappell, Lyden, Liebenthal & Chappell, Toledo, OH, for Defendant.

MEMORANDUM OF OPINION AND ORDER

DAN AARON POLSTER, District Judge.

Before the Court are two Motions to Dismiss filed by Defendant True North Energy, LLC, ("True North") that, when combined, seek dismissal of all of Plaintiff Nancy Cox's claims. (ECF Nos. 6 (Defendant's Partial Motion to Dismiss Plaintiffs First Amended Complaint) and 12 (Defendant's Motion to Dismiss Plaintiffs Second Amended Complaint) (collectively "the Rule 12(b)(6) Motions," "the Motions," or "the Motions to Dismiss").) For the reasons that follow, True North's Motions are GRANTED IN PART, AND DENIED IN PART.

I. BACKGROUND

The Court takes as true the allegations contained in Cox's Second Amended Complaint for purposes of the Motions to Dismiss. See Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted)). As alleged in Cox's Second Amended Complaint, the facts are as follows. True North operates approximately one hundred gas stations and convenience stores throughout Ohio. Nancy Cox was hired on September 3, 2001 as a store manager for one of True North's stores located in Lorain County, Ohio. Cox managed the store for approximately five years, from September 3, 2001 until May 8, 2006, at which time True North fired Cox.¹ Cox commenced working for True North again on June 30, 2006, managing a different True North store. Cox was subsequently diagnosed on Tuesday, September 19, 2006 with cancer, in the form of a malignant neoplasm in her kidney. On Friday of the same week, September 22, 2006, Cox requested Family and Medical Leave Act ("FMLA") leave to obtain necessary, emergency treatment for her cancer, supported by certification of the serious medical condition provided by her urologist. By Monday, September 25, 2006, True North denied Cox's request for leave without explanation to Cox about why she was ineligible for FMLA leave. Then, on Friday, September 29, 2006, Char Salmons (Manager of Operations for True North) told Cox that she could return to work with True North after her recovery period. Cox relied on Salmons's promise when she left work to undergo cancer treatment. The following Monday, October 2, 2006, Cox underwent surgery to remove the malignant tumor from her kidney.

Fortunately, the surgery was successful, and Cox called several True North supervisors, including Ms. Salmons, on November 9, 2006 to inform these persons that Cox was available to return to work on November 13, 2006. Cox followed up her initial phone call with another phone call the next day (November 10, 2006) to Ms. Salmons and Tom Grady, the District Manager for True North. Ms. Salmons informed Cox during the November 10, 2006 telephone call that True North was looking for a position for Cox, but did not have a position for her at that time. Salmons informed Cox that True North would continue to look for a position for Cox, and that someone would contact Cox by November 15, 2006. Cox received her doctor's approval to return to work on November 13, 2006, but True North thereafter refused to permit Cox to return to work, despite having job openings for store managers after November 13, 2006.

Cox filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on April 7, 2007, alleging that True North fired her because of a disability (cancer) in violation of Title I of the Americas with Disabilities Act ("ADA"). On April 13, 2007, Cox filed a complaint in the Court of Common Pleas for Lorain County, Ohio, alleging FMLA violations, disability discrimination in violation of Ohio's discrimination law, a common law tort claim for wrongful termination in violation of Ohio public policy, a promissory estoppel claim, and a claim seeking punitive damages and emotional distress damages against True North. True North removed the complaint to federal district court on May 11, 2007 (ECF No. 1), and filed a Partial Motion to Dismiss Cox's complaint at the same time (ECF No. 2). Cox filed a First Amended Complaint on June 13, 2007 (ECF No. 3), containing the same, albeit rearticulated, claims. Cox also filed her brief in opposition to True North's Partial Motion to Dismiss on the same day (ECF No. 4).

Approximately one week later, True North filed its Partial Motion to Dismiss Cox's First Amended Complaint (ECF No. 6). The Court conducted a Case Management Conference on July 12, 2007, in which all parties and their counsel participated, which was followed by a settlement conference on August 1, 2007. No settlement was reached during these conferences, however, and on August 2, 2007, the EEOC issued Cox a Right to Sue Letter on her claim of disability discrimination.

During a September 5, 2007 teleconference, the Court granted Cox's oral motion to file a Second Amended Complaint. (ECF No. 8.) Cox filed her Second Amended Complaint on September 24, 2007, which added a claim for violation of the ADA (ECF No. 10). Cox also filed her brief in opposition to True North's Partial Motion to Dismiss Cox's First Amended Complaint on the same day (ECF No. 11). Four days later, True North filed its Motion to Dismiss Cox's Second Amended Complaint, specifically focusing on Cox's disability discrimination claims and incorporating its earlier Partial Motion to Dismiss the First Amended Complaint (ECF No. 12). On October 2, 2007, True North also filed a document entitled "Reply Memorandum in Support of Its Motion to Dismiss Plaintiffs Second Amended Complaint" (ECF No. 13).

On October 24, 2007, the Court issued an Order instructing the parties to brief the question of whether a valid claim exists under Ohio law for wrongful discharge in violation of the public policy embodied in the FMLA's Department of Labor-promulgated regulations (ECF No. 14). Cox was ordered to include this argument in her response brief to True North's Motion to Dismiss Cox's Second Amended Complaint. The Court also ordered True North to file a reply brief one week later. Both parties have now filed their respective briefs (ECF Nos. 15 and 17 respectively), which the Court has carefully considered.

II. LAW AND ANALYSIS

Cox brings several claims in her Second Amended Complaint. Counts I and II are FMLA claims for interference and retaliation respectively. Count III alleges disability discrimination claims in violation of the federal ADA and Ohio's state anti-discrimination statute, Ohio Revised Code § 4112.01 et seq. (" § 4112"). Count IV contains a claim that True North discharged Cox in violation of the public policy goals underlying the federal FMLA and the federal regulations promulgated pursuant to the FMLA. Count V makes a state promissory estoppel claim, while Count VI seeks punitive and emotional distress damages. True North moves to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") for failure to state a claim upon which relief may be granted.

A. Rule 12(b)(6) Standard

True North moves to dismiss the case pursuant to Rule 12(b)(6). When ruling on a Rule 12(b)(6) motion to dismiss, the Court must construe the complaint liberally in a light most favorable to the non-moving party. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998). Also, the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted)). See also, NicSand, Inc. v. 3M Co., 507 F.3d 442 (6th Cir.2007) (en banc) (viewing a complaint "through the prism of Rule 12(b)(6) [requires] us to accept all of its allegations and all reasonable inferences from them as true") (citing Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir.2002)). When reviewing a Rule 12(b)(6) motion to dismiss, the Court must "determine whether the plaintiff can prove a set of facts in support of [her] claims that would entitle [her] to relief." Daubenmire v. City of Columbus, 507 F.3d 383, 387-88 (6th Cir.2007) (quoting Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir.2001)).² In order to preclude dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations which comprise all of the essential, Material elements necessary to sustain a claim for relief under some viable legal theory. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 406 (6th Cir.1998) The Court addresses each of True North's arguments in turn.

B. Counts I and II: FMLA Interference and Retaliation Claims

The question of whether Cox's FMLA-based claims survive the Rule 12(b)(6) stage turns on a threshold question, namely the criteria to be an "eligible employee" under the FMLA. True North claims that Cox was not eligible for FMLA rights, and thus her FMLA claims must be dismissed because she had no FMLA rights to enforce. The Court disagrees.

Federal courts recognize two distinct theories of recovery that arise under the FMLA statute; entitlement (also called interference) pursuant to 29 U.S.C. § 2615(a)(1), and retaliation (also called discrimination) pursuant to 29 U.S.C. § 2615(a)(2). See Hoge v. Honda of America Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). See also, Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir.2006) (citing Arban v. W. Publ. Corp., 345 F.3d 390, 400-401 (6th Cir.2003)) (explaining the entitlement and retaliation theories of recovery under the FMLA). An...