Porter v. Roosa, C-3-01-166.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtRice
Citation259 F.Supp.2d 638
PartiesLinda PORTER, et al., Plaintiffs, v. Ken ROOSA, et al., Defendants.
Docket NumberNo. C-3-01-166.,C-3-01-166.
Decision Date14 January 2003
259 F.Supp.2d 638
Linda PORTER, et al., Plaintiffs,
Ken ROOSA, et al., Defendants.
No. C-3-01-166.
United States District Court, S.D. Ohio, Western Division.
January 14, 2003.

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Paul Roger Leonard, Dayton, OH, Harold Robert Farquhar, Dayton, OH, for plaintiffs.

Lawrence Francis Feheley, Thomas Walter Hill, Kegler Brown Hill & Ritter, Columbus, OH, for defendants.


RICE, Chief Judge.

The Plaintiffs in this case are Linda Porter and Lisa Nicolosi, two former employees of the McDonald's Corporation ("McDonald's"). The Defendants are McDonald's itself, and Ken Roosa and Anita Patton, who were also employed by McDonald's at all relevant times. Where no confusion will result, the Court will refer to the Defendants collectively as "McDonald's." The Plaintiffs plead, in their Amended Complaint (Doc. # 18), the following four claims: (1) promissory estoppel (Count One; stated by both Plaintiffs); (2) negligence (Count Two; stated by both Plaintiffs); (3) retaliation in violation of the public policy of the State of Ohio (Count Three; stated by Nicolosi only); and (4) retaliation in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. ("FLSA") (Count Four; stated by Nicolosi only). The Plaintiffs filed their original Complaint (attached to Doc. # 1) in the Common Pleas Court of Montgomery County, Ohio. McDonald's removed same on the basis that this Court could assume original subject matter jurisdiction of the entire case because of the presence

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of the FLSA claim (plead as Count One in the original Complaint) (Doc. # 1). See 28 U.S.C. §§ 1331 & 1441(a) & (c).

The Defendants now move for summary judgment. Because the material facts related to each Plaintiff are, for the most part, distinct, the Defendants have filed separate Motions for Summary Judgment with respect to the claims of Porter (Doc. # 25) and Nicolosi (Doc. # 24). For the reasons which follow, the Motion stated against Porter will be overruled, and her claims remanded, on account of the Court's lack of subject matter jurisdiction. The Motion stated against Nicolosi will be sustained.

I. Background Facts1

Porter was hired by McDonald's in 1983 as a crew person. (Porter Aff. (Doc. # 33 at Ex. 1) 112.) She was promoted to the position of Second Assistant in 1987, and then to First Assistant in 1990. (Id.) She left the employ of McDonald's in 1994, but returned as a First Assistant in 1999. (Id. 113.) In May, 2000, she became the manager of the Sugarcreek Plaza McDonald's restaurant, in Centerville, Ohio. (Id.)

Nicolosi was hired by McDonald's in 1997 as a crew person at the Stroop Road McDonald's restaurant, in Kettering, Ohio. (Nicolosi Aff. (Doc. # 34 at Ex. 1) ¶ 1.) In August of 1999, she was promoted to the position of Swing Manager. (Id.) A year later, she was transferred to the Sugarcreek Plaza restaurant, where she continued in the post of Swing Manager, under the supervision of Porter. (Id.) Prior to the events giving rise to the present litigation, Nicolosi had always received stellar marks for her work, received regular merit increases, and was placed in an accelerated management training program. (Id. 12.) In December of 2000, Nicolosi was promoted further to the position of Second Assistant Manager. (Id. ¶ 3.)

Porter was suspended on April 16, 2001, for violating McDonald's policy on the employment of minors ("policy on minors"), and for using profanity. (Porter Aff. ¶ 4.) Prior to that time, Porter had been disciplined by McDonald's only once, back in 1992, when she received a reprimand for working after store closing hours. (Id. 115.) Up to that point, she had always received positive performance marks. (Id. U 6.) The events leading up to her employment of the minor which led to her suspension were spurred by a staff shortage at the Sugarcreek Plaza restaurant. (Id. ¶ 11.) On April 5, 2001, unable to persuade any other existing McDonald's employees, be they her own or from other restaurants, to fill the shortages at her restaurant, and informed by her superior, Randy McCray, that she was not to bother him with her staff problems and that she was simply to do what she had to do to keep her restaurant open, she, along with one of her Swing Managers, Deb Forsythe, hired a minor, Jeremy Lamb, to work on April 6. (Id. ¶¶ 11, 12, 13, 15 & 16.) Forsythe was not disciplined for her role in the scheduling of Lamb, nor was Lamb's mother, Sally Lamb, who worked as a floor supervisor at McDonald's. (Id. ¶ 13.)

At a "termination meeting" on April 20, 2001, Porter was confronted by Roosa and Patton with "termination papers," which she refused to sign. (Id. ¶ 18.) She was prevented from asking any questions or presenting her side of the story. (Id.)

Prior to her suspension and termination, Porter was unaware of any regular employee or manager of McDonald's being disciplined for using profanity or violating the policy on minors, even though the doing

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of both was common at McDonald's. (Id. ¶¶ 9, 10 & 17.) In fact, Porter had reprimanded others for violating the policy on minors and had reported such to her superiors, including McCray and Roosa, who responded by saying that they "did not want to hear about it." (Id. ¶ 15.) Another former McDonald's employee and Shift Manager, Donna Price, also states that the use of profanity was common at McDonald's during her three years with the company, but that Porter is the only person of whom she is aware who that was actually terminated for swearing. (Price Aff. (Doc. #33 at Ex. 4) ¶ 5.) Price also states that Porter is the only person of whom she is aware that was ever terminated for violating the policy on minors. (Id. ¶ 4.)

Subsequent to Porter's termination, Nicolosi began gathering documentation to present to upper level management for purposes of demonstrating that the violations for which Porter had purportedly been discharged were commonplace at McDonald's and that no one else had ever been terminated for such. (Nicolosi Aff. ¶ 5.) She discussed her findings and concerns with other restaurant managers and with upper level management, including Patton and Roosa. (Id. ¶ 5 & 6.) On April 22, 2001, Nicolosi prepared a memorandum for presentation to, among others, Roosa and Patton. (Id. ¶ 7.) The memorandum stated:

To Whom it May Concern:

The downfall of many a great leader is the underestimation of the people they lead. Never assume ignorance or stupidity in those who follow you, because it is in your shadow that they are molded.

You are a leader of a great empire. A corporation that is in itself a way of living, a culture, a society completely like no other. This position brings with it a great amount of power, yet a great amount of responsibility as well. A responsibility to your people to not abuse your power. A promise to be fair, consistent, and unbiased. To provide guidance and direction. When you fail to do so, you lose the very thing that made you a leader: respect.

Yet this loss can be repaired. One who is not big enough to admit an error and correct it leads nothing at all. And one who makes a decision and is not prepared to carry through with a choice in a consistent and fair manner is a fool.

So here is the test. You have been kindly provided with all of the information necessary to challenge yourself to a true test of character. You have been given the tools to look within yourself and see what lies beneath; in terms of morality, and fairness. Find what truly makes you a leader.

You are free to do with the information I have provided in any way you please. You may ignore it, and see how you feel about yourself and your ethics. You may try to admit a wrong you may have committed, and correct it. You may try to be fair and treat this in the same manner as the prior.

Whatever you choose, I hope you think long and hard about the lesson within, on so many different levels.

But consider this your red flag, because you have officially been "made aware of the situation."

And be at peace with your decision on how to handle this, because I have a decision to make about how I will handle it as well, and they may not coincide.

In a postscript, she added:

One who is loyal to what they love to the end means that they will not be idle. The ability to point out an error despite the consequences for the good of the whole and the progress of its people

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displays a loyalty far exceeding those who sit and watch.

(Doc. # 34 at Ex. 2.)

Attached to this memorandum were certain documents which Nicolosi apparently discovered or assembled as part of her "investigation" into other infractions which did not result in the type of discipline meted out upon Porter. (Nicolosi Aff. ¶ 7; Doc. #34 at Ex. 2.)2 The attachments include what purports to be a record that at least one employee had been paid less than minimum wage on one occasion and a written bulletin from a shift manager in which a certain expletive is used to describe, in a critical manner, the unkempt condition of the restaurant floor, as it had been left by the "closing" crew on the previous evening. (Nicolosi also purports that certain other attachments highlight the existence of prior violations of the policy on minors and the falsification of certain time-clock records (Nicolosi Aff. ¶ 7; Doc. # 34 at Ex. 2), but these facts are not apparent to the Court on the face of the documents, and Nicolosi provides no greater explication of their content. They are,...

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