McFarland v. Honeywell Int'l, Inc.

• Decision Date: 12 August 2020
• Docket Number: Case No. 3:20-cv-85
• Parties: COLLEEN MCFARLAND, Plaintiff, v. HONEYWELL INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

COLLEEN MCFARLAND, Plaintiff, v. HONEYWELL INTERNATIONAL, INC., Defendant.

Case No. 3:20-cv-85

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

August 12, 2020

Judge Thomas M. Rose

ENTRY AND ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (DOC. 11)

Pending before the Court is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 11) (the "Motion"), filed by Defendant Honeywell International Inc. ("Honeywell") pursuant to Fed. R. Civ. P. 12(b)(6). The Motion is fully briefed and ripe for review. (Docs. 11, 13, 15.) In her Second Amended Complaint (Doc. 10) ("SAC"), Plaintiff Colleen McFarland ("McFarland") brings two counts: (1) violation of the Ohio Whistleblower Statute, Ohio Revised Code ("R.C.") § 4113.52; and, (2) wrongful termination in violation of public policy. For the reasons discussed below, the Court GRANTS, IN PART, AND DENIES, IN PART, the Motion.

I. BACKGROUND

McFarland originally filed this action in the Court of Common Pleas for Champaign County, Ohio on February 3, 2020. Honeywell removed it to this Court on March 6, 2020 on diversity jurisdiction grounds. According to the SAC, McFarland was employed in Honeywell's Human Resource department from January 15, 2018 until her termination on August 21, 2019. Among other allegations, McFarland alleges that she reported to her supervisor that a Honeywell employee had falsified records to meet revenue targets, that Honeywell terminated her employment in retaliation for doing so, and that Honeywell's stated reason for terminating her was pretextual. (See Doc. 10 at ¶¶ 9, 15, 27, 28, 33, 35, 37.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While this rule "does not require 'detailed factual allegations' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. "To survive 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." Iqbal, 556 U.S. at 678. A claim is facially plausible when it includes "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard is not the same as a probability standard, but "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks omitted). Thus, if a plaintiff has "not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.

When ruling on a motion to dismiss, the Court must accept the factual allegations of the complaint as true and construe them in a light most favorable to the non-moving party. Twombly, 550 U.S. at 554-55. However, the Court is not bound to accept as true a legal conclusion couchedas a factual allegation. Id. at 555-56. "In evaluating a motion to dismiss [a court] may consider the complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to the defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein." Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016) (internal quotation marks omitted).

III. ANALYSIS

The Court first addresses Honeywell's argument that, although McFarland did not attach to the SAC a July 25, 2019 email from McFarland to Honeywell's Access Integrity Helpline on which she carbon-copied her supervisor (the "July 25 Written Report"), it is the basis for McFarland's claims and is specifically referenced in the SAC. Therefore, according to Honeywell, it is necessarily incorporated into the SAC, and Honeywell may attach it to the Motion and rely on it.¹ The Court agrees. Luis, 833 F.3d at 626; Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) ("documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim") (internal quotation marks omitted); Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336-37 (6th Cir. 2007) ("documents attached to the pleadings become part of the pleadings and may be considered on a motion to dismiss" and, "when a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment"). The SAC states that, "[d]ue to the termination [of her employment with Honeywell], McFarland had no access to her work emails." (Doc. 10 at ¶ 32.) Therefore, it is not surprising that McFarland did not attach a copy of the July 25 Written Report to the SAC, although—as Honeywell points out—she did reference it. (See, e.g., id. at ¶¶ 23, 25, 50; Doc. 11at PAGEID # 57.)

McFarland does not argue otherwise or object to consideration of the July 25 Written Report. Among other things, in the July 25 Written Report, McFarland requested that a business conduct incident report be opened, and it indicates that she believed there to be a violation of "Aero Procedures" and that an employee had potentially falsified business management software records. Honeywell states that, for purposes of the Motion, it does not dispute that McFarland made an oral report to her supervisor regarding the same subject matter as the July 25 Written Report.

Next, the Court addresses the law applicable to McFarland's claims.² When a federal court sits in diversity, it applies substantive law of the forum state. Croce v. New York Times Co., 930 F.3d 787, 792 (6th Cir. 2019); see also 28 U.S.C. § 1652. Ohio law governs McFarland's two claims, and the Court "must apply the State's law as announced by its highest court." Croce, 930 F.3d at 792. "If the Ohio Supreme Court has not provided guidance on the issue at hand, [then the Court] may consider the decision of the State's courts of appeals, relevant dicta from the Ohio Supreme Court, as well as other sources...." Id.

A. Claim for Violation of Ohio's Whistleblower Statute (Count 1)

"Ohio's Whistleblower statute provides an employee protection from employer retaliation under certain circumstances when the employee reports activity of fellow employees in the workplace." Fox v. City of Bowling Green, 76 Ohio St. 3d 534, 668 N.E.2d 898, 901 (Ohio 1996).The statute "was designed to give whistleblowers some protection in Ohio's employment-at-will environment." Id. at 902.

"In order to establish a violation of the Ohio whistleblower statute, a plaintiff must first make a prima facie case by showing that 1) he or she engaged in activity which would bring him or her under the protection of the statute, 2) was subject to an adverse employment action and 3) there was a causal link between the protected activity and the adverse employment action." Klepsky v. United Parcel Serv., Inc., 489 F.3d 264, 271 (6th Cir. 2007) (internal quotation marks omitted); see also Bennett v. Columbiana Cnty. Coroner, 2016-Ohio-7182, 72 N.E.3d 242, 255 (Ohio Ct. App. 2016). As to the first element, "[i]n order for an employee to be afforded protection as a 'whistleblower,' such employee must strictly comply with the dictates of R.C. 4113.52." Contreras v. Ferro Corp., 73 Ohio St. 3d 244, 652 N.E.2d 940 (Ohio 1995) (Syllabus). "Failure to do so prevents the employee from claiming the protections embodied in the statute." Id.

Section (A) of the statute³ identifies three circumstances in which an employee is protected for whistleblowing activity, including subsection (A)(1) addressing reports of violations that the "employer has authority to correct" and subsection (A)(3) addressing reports of violations "by a fellow employee":

(1) (a) If an employee becomes aware in the course of the employee's employment of a violation of any state or federal statute or any ordinance or regulation of a political subdivision that the employee's employer has authority to correct, and the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety, a felony, or an improper solicitation for a contribution, the employee orally shall notify the employee's supervisor or other responsible officer of the employee's employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation. ...

...

(3) If an employee becomes aware in the course of the employee's employment of a violation by a fellow employee of any state or federal statute, any ordinance or regulation of a political subdivision, or any work rule or company policy of the employee's employer and the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety, a felony, or an improper solicitation for a contribution, the employee orally shall notify the employee's supervisor or other responsible officer of the employee's employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation.

R.C. § 4113.52(A)(1)(a), (A)(3). Thus, although much of the language in subsections (A)(1)(a) and (A)(3) is similar, there...