Esparza v. Pierre Foods

Decision Date12 February 2013
Docket NumberNos. 1:11–cv–874,875–HJW.,s. 1:11–cv–874
Citation923 F.Supp.2d 1099
PartiesRosario ESPARZA, Sr., and Consuelo Esparza, Plaintiffs v. PIERRE FOODS, n/k/a Advanced Pierre Foods, Inc., Defendant.
CourtU.S. District Court — Southern District of Ohio

OPINION TEXT STARTS HERE

Daryl Allan Crosthwaite, Dana Rachelle Lambert, Butkovich & Crosthwaite Co. LPA, Cincinnati, OH, for Plaintiffs.

Heather Marie Muzumdar, Keith P. Spiller, Thompson Hine LLP, Cincinnati, OH, for Defendant.

ORDER

HERMAN J. WEBER, Senior District Judge.

Pending is the defendant's partial Motion to Dismiss (doc. no. 24 in Case No. 1:11–cv–874, Rosario Esparza, Sr. v. Pierre Foods ) regarding four claims in the amended complaint. Also pending is the identical Motion to Dismiss filed in the companion case (doc. no. 25 in Case No. 1:11–cv–875, Consuelo Esparza v. Pierre Foods ).1 The cases have been consolidated for purposes of discovery and pretrial matters. Plaintiffs oppose the motion, and defendant (Pierre Foods) has replied. Having fully considered the record, including the pleadings, the parties' briefs, and applicable authority, the Court will grant in part and deny in part the motion for the following reasons:

I. Background and Procedural History

On December 15, 2011, plaintiff Rosario Esparza, Sr. (Rosario) filed a ten-count federal complaint with a jury demand (Case No. 11–cv–874). The complaint indicates Rosario was born on August 1, 1952 and is of “Mexican descent.” He alleges various kinds of discrimination and retaliation in connection with his employment in the meat packing department at Pierre Foods, where he still works. He complains that, after filing a charge with the Equal Employment Opportunity Commission(“EEOC”), he “did not receive a 7% raise and bonus that he qualified for” (¶ 29). Plaintiff did not attach a copy of his EEOC charge to his federal complaint.

His wife, Consuelo Esparza (Consuelo) also worked at Pierre Foods until her employment was terminated on or about September 30, 2010. She filed a similar federal nine-count federal complaint on December 15, 2011 (Case No. 11–cv–875). She indicates she was born on December 4, 1952, is of “Mexican descent,” and also experienced various kinds of discrimination and retaliation while employed in the meat packing department at Pierre Foods. She alleges she filed an EEOC charge, but did not attach it to her federal complaint. Both plaintiffs are represented by the same counsel.

In February of 2012, Pierre Foods filed a partial motion to dismiss in each case pursuant to Rule 12(b)(6) and also moved to consolidate the two cases. Plaintiffs' counsel advised that the plaintiffs did not oppose consolidation. The Court ordered the two cases consolidated only for purposes of discovery and pre-trial matters (see doc. no. 11 Order”). The cases have not been consolidated for purposes of trial.

Plaintiffs sought, and were granted, leave to file their tendered joint Amended Complaint instanter, thus mooting the initial motions to dismiss. On April 18, 2012, the plaintiffs' fourteen-count joint Amended Complaint (naming both Rosario and Consuelo Esparza as plaintiffs) was entered in the docket in each case (doc. no. 19 in Case No. 11–cv–874, and doc. no. 21 in Case No. 11–cv–875). Again, the plaintiffs referred to their respective EEOC charges, but did not attach copies to their amended complaint.

The amended complaint alleges “retaliation” under Title VII, at 42 U.S.C. § 2000e(2), (3), and (7), as to Rosario (First Cause of Action) and as to Consuelo (Second Cause of Action); “retaliation” under Title VII and 42 U.S.C. § 1981 for both plaintiffs (Third Cause of Action); a state claim for wrongful discharge of Consuelo (Fourth Cause of Action); “hostile work environment” under 42 U.S.C. § 2000e and Ohio R.C. § 4112.02 for Rosario (Fifth Cause of Action) and for Consuelo (Sixth Cause of Action); age discrimination under Ohio R.C. § 4112 for both plaintiffs (Seventh Cause of Action); age discrimination under the Age Discrimination in Employment Act (ADEA) for both plaintiffs (Eighth Cause of Action); sex discrimination under Ohio R.C. § 4112 for Consuelo (Ninth Cause of Action); retaliation in violation of the Family Leave and Medical Act (“FMLA”), at 29 U.S.C. § 2611(a)(1)(D), for Rosario (Tenth Cause of Action); denial of FMLA leave to Consuelo (Eleventh Cause of Action); disability discrimination under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., for Rosario (Twelfth Cause of Action); disability discrimination under Ohio R.C. § 4112 for Rosario (Thirteenth Cause of Action); and intentional infliction of emotional distress for both plaintiffs (Fourteenth Cause of Action). Plaintiffs seek relief including compensatory and punitive damages, injunctive relief, and attorney fees.

Defendant Pierre Foods answered the amended complaint and filed another motion to dismiss, which was entered in the docket in both cases (see doc. no. 24 in Case 1:11–cv–874; doc. no. 25 in Case No. 1:11–cv–875). As plaintiffs' counsel had not filed copies of the plaintiffs' EEOC charges and notices of dismissal/suit rights, defendant appropriately did so (doc. nos. 24–1, 25). Plaintiffs responded, and defendant replied. This matter is fully briefed and ripe for consideration.

II. Issues Presented

Defendant seeks dismissal of four claims pursuant to Rule 12(b)(6). Specifically, defendantasserts that 1) the amended complaint does not allege any “extreme and outrageous” conduct, and thus, the joint claim for intentional infliction of emotional distress (Fourteenth Cause of Action) is subject to dismissal for failure to state a claim for relief; 2) the amended complaint has not pleaded sufficient facts for the Court to reasonably infer that Rosario is “disabled,” and thus, his state and federal claims of disability discrimination (Twelfth and Thirteenth Causes of Action) should be dismissed; and 3) the joint claim for age discrimination under Ohio law (Seventh Cause of Action) is barred by the plaintiffs' election of remedies.

III. Standard of Review

Initially, the Court notes that the defendant has filed an answer, and thus, the present motion will be construed as one brought under Rule 12(c). Fed.R.Civ.P. 12(c). “The legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same.” Lindsay v. Yates, 498 F.3d 434, 437 (6th Cir.(Ohio) 2007); see also, Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008).

In order to withstand a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court must accept a complaint's well-pleaded factual allegations as true for purposes of a motion to dismiss, but is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp., 550 U.S. at 555, 127 S.Ct. 1955. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The court must focus on whether the plaintiff is entitled to offer evidence to support his claims, rather than whether he will ultimately prevail. Id.

Although courts generally do not consider matters outside the pleadings when reviewing a complaint for legal sufficiency, courts may consider exhibits attached to the pleadings, if the documents are referenced in the complaint and are central to the plaintiff's claims. Nixon v. Wilmington Trust Co., 543 F.3d 354, 357 (6th Cir.2008). Courts also may take judicial notice of orders issued by administrative agencies, such as the EEOC. Toth v. Grand Trunk R.R., 306 F.3d 335, 348 (6th Cir.2002). The Court will take judicial notice of the EEOC “Dismissal and Notice of Suits Rights” filed in the record (doc. no. 7–1 at 5–6, 9–10).

IV. DiscussionA. Whether the Plaintiffs' Joint Claim for Intentional Infliction of Emotional Distress (Fourteenth Cause of Action) Fails to State a Claim for Relief

In their amended complaint, both plaintiffs complain of their treatment at work, including alleged rude and derogatory comments by various individuals, being transferred to other departments, locker inspections, denial of a 7% raise for Rosario, and an increased workload and scrutiny after making complaints. Even taking all well-pleaded non-conclusory factual allegations as true for purposes of Rule 12(b)(6), the alleged conduct does not rise to the “extreme and outrageous” level necessary to state an actionable claim of intentional infliction of emotional distress under Ohio law. See Miller v. Currie, 50 F.3d 373, 377–78 (6th Cir.1995) (“It is well accepted that intentional infliction of emotional distress claims may entirely appropriately be dealt with ... in a motion to dismiss and observing that a trial court may rule, as a matter of law, that certain conduct does not rise to the extreme level necessary to state a claim); Sinclair v. Donovan, 2011 WL 5326093, *11 (S.D.Ohio) (J.Spiegel) (“without an allegation of conduct that, as a matter of law, is extreme and outrageous, plaintiffs' claim must be dismissed”); Mann v. Cincinnati Enquirer, 2010 WL 3328631, *5 (Ohio App. 1st Dist.) (affirming dismissal of claim of intentional infliction of emotional distress because the alleged conduct did not rise to the “extreme and outrageous” level); Hanly v. Riverside Methodist Hospitals, 78 Ohio App.3d 73, 82, 603 N.E.2d 1126 (1991) (emphasizing that...

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