Weldon v. Warren Cnty. Children Servs.
| Decision Date | 14 November 2012 |
| Docket Number | Case No. 1:12-cv-279-HJW |
| Parties | BRACIE T. WELDON, Plaintiff v. WARREN COUNTY CHILDREN SERVICES, et al, Defendants |
| Court | U.S. District Court — Southern District of Ohio |
This matter is before the Court upon the defendant's "Motion to Dismiss" (doc. no. 11), which plaintiff opposes. Having fully considered the record, including the pleadings, the parties' briefs, and the oral arguments heard in conjunction with the pretrial conference, the Court will grant the motion for the following reasons:
I. Background
Plaintiff Bracie T. Weldon was hired by the Warren County Children Services to work as a case manager beginning February 28, 2011. She did not make it through her probationary period and was terminated less than six months later on September 27, 2011 for "failingto meet the standards of the Protective Services Caseworker position" (doc. no. 26 at 22). She indicates her employer found her "to be ineffective in her work position through lack of production" but claims her lack of production was due to "the oppressive attitudes and conduct toward [her]" (Id. at 9, ¶25). She complains that a female supervisor criticized her attire "while other employees are permitted to wear clothing that has been characterized as inappropriate when worn by plaintiff" (Id. at 7, ¶ 18). Plaintiff concludes that she was subjected to "discriminatory treatment . . . because of her sex and race" (Id. at 3, ¶1).
On October 11, 2011, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging race and sex discrimination (doc. no. 17-1 at 20). On January 27, 2012, the EEOC mailed a "Dismissal and Notice of Suit Rights" letter, advising plaintiff that if she wished to file a claim in federal court, she had 90 days to do so. See 42 U.S.C. § 2000e-5(f)(1).
On April 5, 2012, the plaintiff timely filed a six-count federal complaint, alleging race discrimination and retaliation under Title VII,and four state claims for slander per se, slander per quod, wrongful discharge, and negligent infliction of emotional distress (doc. no. 1). She sued her former employer (Warren County Children Services) and various individual defendants (two supervisors, three county commissioners, the Executive Director of Warren County Jobs & Family Services, and "various John Does and Jane Does").
On June 4, 2012, the defendants moved to dismiss certain claims and defendants (doc. no. 11). Plaintiff responded (doc. no. 18), and defendants replied (doc. no. 23). On July 5, 2012, plaintiff moved to amend and attached a proposed "First Amended Complaint" (doc. no. 17). The defendants opposed leave to amend, largely on grounds of futility (doc. no. 22).
On August 2, 2012, the Court held a pretrial conference and heard oral arguments on the pending motions. Plaintiff's proposed "First Amended Complaint" fixed one minor defect (i.e. a typographical error regarding a statute number) pointed out by defendants, reasserted all the same claims, and added a claim for "intentional infliction of emotional distress" in a new Count Seven. As Rule 15(a)(2) of theFederal Rules of Civil Procedure provides that courts should freely grant leave to amend when justice so requires, and as plaintiff sought to amend fairly early in this case, the Court granted leave to amend (doc. no. 25). The "First Amended Complaint" was filed in the record (doc. no. 26).
In conjunction with the pretrial conference, the Court heard oral argument on the defendants' "Motion to Dismiss" (doc. no. 11) as applied to the "First Amended Complaint." While an amended complaint supersedes the prior pleading, and any motions pertaining to the prior pleading are generally rendered moot, the defendants pointed out that their arguments for dismissal apply equally to the plaintiff's reasserted claims. Moreover, the defendants' reply brief specifically addressed the "First Amended Complaint." Defense counsel expressed concern about the expense to the parties of repetitive re-briefing.
Under the circumstances, and given that the parties were afforded full opportunity to orally argue the issues as applied to the "First Amended Complaint," the Court found that re-briefing was not necessary. In the interests of justice, and to avoid duplication of filingsand needless expense to all parties, the Court ordered that the defendants' motion to dismiss be reinstated with respect to the "First Amended Complaint." The issues in that motion, as orally argued before the Court with respect to the First Amended Complaint, will be addressed below.
II. Standard of Review
Motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim for which relief may be granted test the sufficiency of a complaint, and the first step is to identify any conclusory allegations. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). 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." Id. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550 (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. Although the court must accept well pled factual allegations of the complaint as true for purposes of a motion to dismiss, the court is "not bound to accept astrue a legal conclusion couched as a factual allegation." Bell Atlantic, 550 U.S. at 555.1
Initially, plaintiff suggests that "the defendants have attacked portions of the Complaint by presenting supposition of matters outside the Complaint" and that "[a]s a result of such materials contained and attached to the Defendants' motion, it is moved by Plaintiff that the motion to dismiss be stricken or . . . to treat said motion as one for summary judgment" (doc. no. 18 at 1-2).
It is inappropriate for plaintiff to assert a "motion" in a responsive brief. Plaintiff's suggestion is also meritless. In conformity with the local rules, the defendants attached a copy of an unpublished opinion to their motion, not any "evidence" (doc. no. 11-1). See S.D. Ohio Local Rule 7.2(b)(4) (). A citation to an unpublished opinion and an attached courtesy copy provide no reason to treat the defendant's motion to dismiss as one for summary judgment. The Court will consider themotion to dismiss under Rule 12(b)(6).
III. Discussion
In the introductory paragraph of the "First Amended Complaint," plaintiff recites that she brings "this employment discrimination action . . . under 42 U.S.C. §1981a, 42 U.S.C. §1983, 42 U.S.C. §2000e, et seq., 29 U.S.C. §621, et seq., and Ohio Revised Code §4122, et seq., based upon defendants' discriminatory treatment of plaintiff because of her sex and race creating a hostile work environment and retaliation" (doc. no. 26 at ¶1). Much of that paragraph does not appear to correspond with the rest of the allegations in the First Amended Complaint.
Defendants correctly point out that some of these statutes are not applicable and that plaintiff has not raised any claims of sex or age discrimination in her "seven causes of action" set forth in the First Amended Complaint. Given that plaintiff's introductory paragraph mentions "discriminatory treatment of plaintiff because of her sex," the defendants move to dismiss because the First Amended Complaint sets forth no facts to support such a claim. Plaintiff's counsel conceded inthe written response, and again at oral argument, that plaintiff is not asserting a claim of sex discrimination. For clarity's sake, and to the extent such a claim could be read into the complaint, such claim is subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief.
Similarly, although the introductory paragraph recites that plaintiff (who is 36 years old) brings claims under 29 U.S.C. § 621, et seq., the Age Discrimination and Employment Act ("ADEA"), the rest of the First Amended Complaint alleges no facts whatsoever regarding age discrimination. Plaintiff does not allege a claim of age discrimination in any of her "seven causes of action" set forth in the First Amended Complaint. The ADEA has nothing to do with this case.2
As for the initial reference to 42 U.S.C. §§ 1981(a) and 1983, plaintiff's "seven causes of action" set forth in the rest of the First Amended Complaint do not mention these statutes. Her Title VII claim in Count One alleges only that her employer "sought to displace [her]based upon race" (doc. no. 26 at 10, ¶31). In other words, she is alleging a discrete act of discriminatory discharge, not any "class-wide discrimination." See Hunter v. Secretary of U.S. Army, 565 F.3d 986, 994-95 (6th Cir. 2009) (). In her brief, plaintiff devotes only a single sentence to this issue, succinctly suggesting in conclusory fashion that these statutes "apply" (doc. no. 18 at 4). She cites no authority, offers no explanation or legal argument, and points to no facts in support. To the extent the introductory paragraph recites that plaintiff brings claims under these statutes, such claims have been insufficiently pled and are subject to dismissal. Plaintiff acknowledges that she only brings the claims listed in her seven causes of action (doc. no. 18 at 1).
The introductory paragraph further recites that plaintiff brings a claim under Ohio R.C. § 4122 et seq., but this appears to be another typographical error. Plaintiff is presumably referring to Ohio R.C. § 4112, given that Count Five asserts a state claim of wrongful discharge.
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