Scheid v. Fanny Farmer Candy Shops, Inc.

• Citation: 859 F.2d 434
• Decision Date: 18 October 1988
• Docket Number: No. 87-4046,87-4046
• Parties: 48 Fair Empl.Prac.Cas. 137, 47 Empl. Prac. Dec. P 38,361, 111 Lab.Cas. P 56,024, 12 Fed.R.Serv.3d 647, 3 Indiv.Empl.Rts.Cas. 1726 Vivian J. SCHEID, Plaintiff-Appellant, v. FANNY FARMER CANDY SHOPS, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 434

859 F.2d 434 48 Fair Empl.Prac.Cas. 137,
47 Empl. Prac. Dec. P 38,361,
111 Lab.Cas. P 56,024, 12 Fed.R.Serv.3d 647,
3 Indiv.Empl.Rts.Cas. 1726 Vivian J. SCHEID, Plaintiff-Appellant,
v.
FANNY FARMER CANDY SHOPS, INC., Defendant-Appellee. No. 87-4046. United States Court of Appeals,
Sixth Circuit. Submitted Aug. 16, 1988.
Decided Oct. 18, 1988.

Page 435

Damian J. Vercillo Henderson, Harpster, Vanosdall & Vercillo, Ashland, Ohio, for plaintiff-appellant.

Rolf H. Scheidel, Shumaker, Loop & Kendrick, Toledo, Ohio, for defendant-appellee.

Before JONES and RYAN, Circuit Judges, and HULL, District Judge. ^*

RYAN, Circuit Judge.

Plaintiff Vivian J. Scheid appeals the district court's order granting defendant Fanny Farmer Candy Shops, Inc.'s, motion under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's age discrimination and breach of contract claims in this diversity action for wrongful discharge. We affirm the dismissal of plaintiff's age discrimination claim, but because we hold that the pleadings for plaintiff's breach of contract claim satisfy the pleading requirements of Fed.R.Civ.P. 8, we reverse the dismissal of plaintiff's contract claim.

Scheid was employed by Fanny Farmer at its Norfolk, Ohio plant from September 1963 until her discharge in July 1986. From 1963 until late 1972 or early 1973 she was an hourly employee represented by a union, and the conditions of her employment were governed by collective bargaining agreement. Subsequently, Scheid was promoted to supervisor of the enrober pack department. She held this position until 1983 when she was laterally transferred to another supervisory position, receiving department supervisor, which she held until her discharge. Scheid never had a written employment contract with Fanny Farmer.

In June 1986, Fanny Farmer announced that due to adverse economic conditions it would eliminate two supervisory positions. The company offered an incentive severance plan to induce two voluntary terminations;

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however, only one supervisor accepted. In July 1986, Fanny Farmer discharged Scheid, aged forty-four, and shifted her responsibilities to two other supervisors, aged forty-seven and fifty-nine.

In November 1986, Scheid filed a complaint against Fanny Farmer in Ohio state court, alleging the following causes of action: age discrimination under Ohio Rev.Code Sec. 4101.17, breach of implied contract, breach of duty of fair dealing, malicious discharge of employment, and negligent or intentional infliction of emotional distress. After removing to federal court, defendant, on October 2, 1987, filed a motion to dismiss under Rule 12(b)(6) ¹ or, in the alternative, for summary judgment under Rule 56. Attached to defendant's motion were excerpts of Scheid's deposition, an affidavit of defendant's plant personnel manager, and a copy of defendant's personnel manual. On October 21, 1987, the district court entered an order granting defendant's motion to dismiss. Scheid filed timely notice of appeal from the order and challenges the dismissal of her age discrimination and contract claims.

I.

We first address defendant's contention that this court should decide this appeal on summary judgment grounds under Rule 56. When a motion to dismiss under Rule 12(b)(6) is accompanied by matters outside the pleadings, as in this case, it is within the district court's discretion to consider such matters and decide the motion as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(b). Inasmuch as the district court prepared no memorandum elucidating the basis of its order, and the order provided simply that "Defendant's motion to dismiss is sustained" (emphasis added), we assume that the order was decided as a motion to dismiss under Rule 12(b)(6) and was based solely on the pleadings. We decline defendant's invitation to reach the merits of this action under Rule 56 and will decide this appeal on the pleadings as a motion to dismiss under Rule 12(b)(6).

II.

A Rule 12(b)(6) motion tests whether a cognizable claim has been pleaded in the complaint. Rule 8(a) sets forth the basic federal pleading requirement that a pleading "shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." The familiar standard for reviewing dismissals under Rule 12(b)(6) is that "the factual allegations in the complaint must be regarded as true. The claim should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983) (citing Walker Process Equipment, Inc. v. Food Machinery &...