Nieman v. Murphy
| Decision Date | 16 April 2013 |
| Docket Number | Case No. 1:12-cv-402 |
| Parties | JASON LEE NIEMAN, Plaintiff, v. BETH MURPHY, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
Plaintiff, proceeding pro se, brings this action against defendant Beth Murphy (defendant) under 42 U.S.C. § 1985, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., the Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-101 et seq., and the Ohio Civil Rights Act, Ohio Rev. Code § 4112.02 et seq., alleging defendant unlawfully conspired with others to violate plaintiff's rights by, inter alia, concealing facts from the Equal Employment Opportunity Commission (EEOC), intimidating witnesses in related litigation to plaintiff's detriment, and engaging in improper litigation tactics designed to prevent plaintiff from prevailing on discrimination claims pending in Illinois. This matter is before the Court on: (1) defendant's motion to dismiss plaintiff's first amended complaint (Doc. 24), plaintiff's response in opposition (Doc. 26), and defendant's reply (Doc. 27); (2) plaintiff's motion to file a second amended complaint (Doc. 28) and defendant's response in opposition (Doc. 30); (3) plaintiff's motion to file a third amended complaint (Doc. 31), defendant's response in opposition (Doc. 34), and defendant's supplement to her response in opposition (Doc. 36); (4) plaintiff's motion to strike defendant's response in opposition to his motion to file a third amended complaint (Doc. 35) and defendant's response in opposition (Doc. 38); (5) plaintiff's motion to strike defendant's supplementation to her response in opposition to plaintiff's motion to file a second amended complaint (Doc. 37) and defendant's response inopposition (Doc. 40); and (6) plaintiff's motion to withdraw his motion to strike defendant's response in opposition to his motion to file a second amended complaint. (Doc. 39). The Court will first address defendant's motion to dismiss plaintiff's amended complaint.
Plaintiff's first amended complaint alleges the following facts. Plaintiff is an Illinois resident and an insurance claims industry professional. (Doc. 20, ¶ 11). At all relevant times, defendant was a resident of the State of Ohio and was employed by Grange Insurance (Grange) as Assistant Vice President of Legal and Regulatory Compliance. Id., ¶ 12. Grange is affiliated with Integrity Mutual Insurance Co. (Integrity); Grange and Integrity are an integrated enterprise operating in Illinois, Ohio, and Wisconsin. Id.
In July 2009, Integrity advertised an opening for the position of Vice President of Claims in Integrity's Appleton, Wisconsin office. Id., ¶ 13. Plaintiff applied for this position through a job recruiter, Jeff Gipson (Gipson), and underwent an initial interview in February 2010. Id. The Appleton position was not filled at that time and Integrity re-advertised the position through 2011. Id. In May 2011, plaintiff applied for the position again through another recruiter, Mike Tingley (Tingley), who recommended plaintiff for the position. Id., ¶ 14. Plaintiff later called Tingley to follow up on the position; during this conversation plaintiff asked Tingley about whether recruiters and potential employers shared information through databases regarding potential employees' prior Title VII litigation activity. Id., ¶ 15. Tingley informed plaintiff that he was unaware of any such databases, but that some organizations discriminated against older employees. Id., ¶ 20. Plaintiff explained that he was concerned that he was being "blacklisted" because he had engaged in prior Title VII litigation. Id., ¶¶ 17, 26.
Shortly thereafter, Tingley informed plaintiff that he would not be offered the position atIntegrity stating that plaintiff's lack of a master's degree in business administration (MBA) was a "dealbreaker." Id., ¶ 18. Plaintiff continued to follow up with Tingley regarding the Integrity position after noting it was reposted. Id., ¶ 20. In the summer of 2011, plaintiff learned that an individual who was younger than plaintiff and who did not have a MBA was hired to fill the position. Id., ¶ 22-23. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (EEOC) asserting that Integrity had unlawfully discriminated against him on the basis of his age. Id., ¶ 28. Plaintiff received his "right to sue" letter in October 2011 and initiated lawsuits against Integrity and others in Illinois. Id., ¶¶ 30, 33.
Plaintiff filed an action in the United States District Court for the Central District of Illinois, Nieman v. Grange Mut. Casualty Co., et al., No. 3:11-cv-3404 (C.D. Ill. 2011) (Illinois Suit I).1 Illinois Suit I involves plaintiff's claims that Grange and Integrity unlawfully discriminated against him on the basis of his age in violation of Title VII, the ADEA, and the Illinois Human Rights Act. See Nieman, No. 3:11-cv-3404, 2012 WL 1467562 (C.D. Ill. Apr. 27, 2012) (). After Illinois Suit I entered the discovery phase, plaintiff filed a second suit against Grange and Integrity: Nieman v. Grange Mut. Ins. Co., et al., No. 3:12-cv-3250 (C.D. Ill. 2012) (Illinois Suit II). Illinois Suit II involves plaintiff's claims that Grange and Integrity unlawfully retaliated against him in violation of Title VII, the ADEA, § 1985, the Illinois Human Rights Act, and the Ohio Civil Rights Act by engaging in improper litigation conduct in Illinois Suit I. See Nieman, No. 3:12-cv-3250, 2013 WL 173466 (C.D. Ill. Jan. 16, 2013). Illinois Suit II was dismissed pursuant to District Judge Mills' grant of Grange and Integrity's motion to dismiss. Id.
Plaintiff's allegations in the instant case are similar to those raised in Illinois Suits I andII. Notably, plaintiff's initial complaint includes allegations that are verbatim recitals of allegations raised in Illinois Suit I. Compare, e.g., Doc. 1, ¶¶ 17-30 with Nieman, No. 3:11-cv-3404 (Doc. 1, ¶¶ 26-37). For purposes of ruling on the instant motion, the Court focuses on the allegations in plaintiff's 37-page amended complaint relating to defendant Murphy.
Plaintiff alleges that defendant Murphy engaged in the following conduct in her capacity as an executive officer of Grange and/or Integrity, and not as an attorney. (Doc. 20, ¶ 12). Plaintiff's allegations regarding defendant Murphy primarily involve her role in investigating and preparing Integrity and/or Grange's response to plaintiff's EEOC discrimination charges and in orchestrating Grange and/or Integrity's litigation defense in the Illinois lawsuits. See, e.g., Doc. 20, ¶¶ 34, 38, 40-46. For example, plaintiff alleges that the discovery he received in Illinois Suit I demonstrates that Ms. Murphy has: made inconsistent statements regarding Integrity's basis for not hiring plaintiff; encouraged Ms. Cindy Heindel, the Integrity employee who interviewed plaintiff, to exclude information in her response to the EEOC regarding plaintiff's discrimination charge2 ; and improperly failed to disclose information to the EEOC or plaintiff which was supportive of plaintiff's discrimination charge. Id., ¶¶ 34, 37, 39.3 Plaintiff further alleges that the record evidence demonstrates that defendant Murphy: had knowledge of and encouraged a pattern and practice of age discrimination at Grange and/or Integrity; bribed Gipson to ensure that he provided deposition testimony favorable to Grange and/or Integrity; and filed false documents with the Court and/or the EEOC. Id., ¶¶ 40-41. Plaintiff also complains that defendant Murphy is responsible for the conduct of defense counsel in Illinois Suit I and hasconspired with said attorneys to preclude plaintiff from presenting discovery obtained in that matter in the instant case. Id., ¶¶ 43. Likewise, plaintiff alleges that defendant Murphy and defense counsel in Illinois Suit I have conspired against plaintiff by making a counter-demand to settle Illinois Suit I and filing a motion for sanctions. Id., ¶¶ 42, 44.
In Count I of his amended complaint, plaintiff alleges defendant has violated the Ohio Civil Rights Act and committed acts of conspiracy and retaliation against plaintiff by: filing a position statement to the EEOC on behalf of Grange and Integrity in response to plaintiff's discrimination charge; conducting an inadequate internal investigation of plaintiff's discrimination claims; improperly opposing plaintiff's legal claims; directing the litigation in Illinois Suit I, improperly denying plaintiff's allegations therein, and improperly retaliating against him through the threat of counterclaims and sanctions in that action; violating her duty as an officer of the Court to engage in an objective and good faith investigation into plaintiff's discrimination claims; conspiring with Grange and/or Integrity employees to cover up facts relating to plaintiff's discrimination charge; and intimidating, influencing, bribing, and/or dissuading witnesses in Illinois Suit I. Id., ¶¶ 47-59. Count II, Conspiracy in Violation of 42 U.S.C. § 1985, includes plaintiff's allegations that defendant conspired with others to: discourage his candidacy for the Integrity position; oppose plaintiff's EEOC claims and plaintiff's claims in Illinois Suit I; intimidate and bribe Gipson prior to his deposition in Illinois Suit I; and prevent plaintiff from uncovering evidence of discrimination at Grange and Integrity. Id., ¶¶ 60-64. In support of Count III, the RICO claim, plaintiff alleges defendant conspired with others, including defense counsel in Illinois Suit I, to unlawfully deprive plaintiff of relief he is entitled to in his lawsuits by covering up Grange and Integrity's discriminatory practices; intimidating Gipson as a witness; and committing mail and/or wire fraud by making false filings with the EEOC inretaliation for plaintiff's lawsuits. Id., ¶¶ 65-70. Lastly, ...
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