MEMORANDUM OPINION AND ORDER
Bеfore the Court is what was originally brought solely as a motion to dismiss by defendant Superior Dairy, Inc. (“defendant” or “Superior”) pursuant to Fed. R.Civ.P. 12(b)(6). (ECF No. 4.) Plaintiff Terry Kovac (“plaintiff’ or “Kovac”) has filed a memorandum in opposition (ECF No. 7), and Superior has filed a reply (ECF No. 8). In order to dispose of an issue raised in the briefing regarding whether plaintiffs claims are subject to mandatory arbitration, the Court converted the motion to dismiss on that particular issue into a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Accordingly, the Court invited the parties to file supplemental briefing on the arbitration issue, and the parties did so. (ECF Nos. 10-12.) The parties alsо filed a joint stipulation pertaining to the arbitration issue. (ECF No. 9.) The matter is ripe for determination. For the reasons that follow, defendant’s motion for summary judgment is
I. BACKGROUND
The following background information is alleged by Kovac. At some time prior to the events underlying this case, Kovac was in an accident that left one of his legs “severely mangled.” (ECF No. 1-3 at ¶ 4.) On June 12, 2006, Superior hired Kovac through the Bureau of Vocational Rehabilitation as a “lot trailer transporter,” which entailed driving a “Yard Tractor.” (ECF No. 1-3 at ¶6; ECF No. 4-2 at 46.)
Kovac worked under these restrictions until September 2009, when Superior underwent a change of management. (ECF No. 1-3 at ¶ 10.) Soon after, Superior scheduled Kovac to work outside his permanent time restrictions. (ECF No. 1-3 at ¶ 11.) Kovac notified Superior, and the issue was resolved. (ECF No. 4-2 at 47.) In November 2009, Kovac was “forced” by Superior to take twelve weeks of sick leave in order to be examinеd by a doctor that Superior hired to re-examine Kovac’s restrictions and medication. (ECF No. 1-3 at ¶ 13.) Kovac was required to provide all of his personal medical records to Superior as part of this evaluation. (ECF No. 1-3 at ¶ 14.)
The examining physician upheld Kovac’s restrictions, and Kovac returned to work at Superior on March 1, 2010. (ECF No. 1-3 at ¶¶ 15-16.) Upon his return, however, Kovac was assigned the position of line lift operator, one of the two positions outside his job restrictions. (ECF No. 1-3 at ¶ 16.) He informed his supervisor, but was threatened with termination if he did not perform the job. (ECF No. 4-2 at 47.) Subsequently, Kovac worked as a linе lift operator for several days, experiencing “severe issues with his leg,” at which point he was moved to a position within his restrictions. (ECF No. 1-3 at ¶ 17.)
On December 14, 2010, Superior once again assigned Kovac to a job outside his job restrictions, the leak check position, this time on a permanent basis. (ECF No. 4-2 at 47.) At the time, Kovac was senior to all but one member of the third shift, and there were three other jobs on the shift that Kovac could have performed pursuant to his medical restrictions. (ECF No. 4-2 at 47.) Upon informing Superior that he would need to consult with his doctor before performing a job outside of his restrictions, Kovac was sent home. (ECF No. 4-2 at 47.) On December 16, 2010, Kovac filed a grievance with his union under Article IX of the union’s collective bargaining agreement (the “CBA”), seeking reinstatement to the “loader” position until his doctor could review his ability to perform the leak check position. (ECF No. 9 at 167,171.) That same day, Superi- or terminated Kovac for “insubordination” for refusing to work the leak check position. (ECF No. 4-2 at 47.) On December 17, 2010, Kovac filed a second grievance with the union, this time alleging “discharge without just cause.” (ECF No. 9 at 172.) The union decided not to pursue either of Kovac’s grievances to arbitration
On April 11, 2011, Kovac filed a dual charge with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”), asserting disability discrimination and retaliation. (ECF No. 4-2 at 46.) The OCRC investigated Kovac’s allegations, ruling in a letter of determination issued September 29, 2011, that there was no probable cause to believe Superior had discriminated against Kovac and recommending that the matter be dismissed. (ECF No. 4-2 at 53.) Kovac applied for reconsideration of the OCRC’s decision, and on January 12, 2012, the OCRC upheld its determination of no probable cause and ordered dismissal, finding that Kovac was indeed fired for insubordination, which was “a legitimate, non-discriminatory” grоund for termination. (ECF No. 4-2 at 53.) Kovac exercised his right to request review of the OCRC’s findings from the EEOC, and the EEOC adopted the OCRC’s findings, sending Kovac a notice of dismissal and right-to-sue letter on February 24, 2012. (ECF No. 4-2 at 59.)
On May 29, 2012, Kovac brought the present action in the Stark County Court of Common Pleas, alleging disability discrimination by Superior in violation of the Americans with Disabilities Act (“ADA”) and Ohio Rev.Code § 4112.02, as well as intentional infliction of emotional distress. (ECF No. 1-3 Ex. B.) On June 11, 2012, Superior removed the action to this Court (ECF No. 1 at 1) pursuant to 28 U.S.C. §§ 1331 and 1441 and filed the subject motion to dismiss Kovac’s complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 4 at 20).
II. STANDARD AND SCOPE OF REVIEW
A. Documents outside the Pleadings
Superior makes four separate arguments in its dispositive motion: (1) Kovac’s federal discrimination claim is time-barred; (2) Kovac failed to timely appeal his adverse OCRC determination; (3) Kovac’s negligent and/or intentional infliction of emotional distress claim fails to state a claim for which relief can be granted;
In briefing this motion, defendant has included exhibits, and both parties have submitted affidavits. Ordinarily, such “[m]atters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss,” Weiner v. Klais & Co., Inc.,
Exhibits A-D of Superior’s motion to dismiss consist of OCRC and EEOC documents that are part of the public record. Accordingly, the Court may consider these exhibits without converting the motion to dismiss to a motion for summary judgment.
In contrast, Kovac’s affidavit, attached to his opposition to Superior’s motion to dismiss, may not be considered by the court in ruling on a 12(b)(6) motion. Because the affidavit is not essential to the Court’s ruling on defendant’s motion, the Court will not consider it. Likewise, the Court will not consider the affidavit from Superior’s Human Resources Manager attached to Superior’s motion.
Similarly, Exhibit E, the CBA between Superior and its employees’ union, is not public record and is not mentioned in Kovac’s сomplaint. As a result, for the Court to consider the CBA, it must convert the motion to dismiss into a motion for summary judgment. However, the CBA is only relevant to one of the four arguments raised in defendant’s motion: that Kovac consented to arbitration of all his claims. The Court can rule on the other three arguments — that Kovac’s federal discrimination claim is time-barred, that Kovac failed to timely appeal his adverse OCRC determination, and that Kovac’s negligent and/or intentional infliction of emotional distress claim fails to state a claim — -without referencing the CBA. For that reason, the Court only converts defendant’s motion tо dismiss to a motion for summary judgment on the arbitration issue and only considers Exhibit E, the CBA, for the same. The parties were given notice of the conversion and filed supplemental briefing on only that issue.
B. Motion for Summary Judgment
Under Fed.R.Civ.P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc.,
The party opposing the motion may not rely merely on allegations or denials in its own pleading; rather, by affidavits or materials in the record, they must set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1). A movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of an essential element in the pleadings, dеpositions, answers to interrogatories,
Rule 56(c)(4) requires that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Mere conclusory allegations “are not evidence and are not adequate to support a motion for summary judgment.” Miller v. Aladdin Temp-Rite, LLC,
Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex,
Defendant’s argument that plaintiff agreed to arbitrate his claims is effectively a motion to compel arbitration. “In evaluating motions or petitions to compel arbitration, courts treat the facts as they would in ruling on a summary judgment.” Rupert v. Macy’s, Inc., No. 1:09CV2763,
C. Motion to Dismiss
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[,]” Fed.R.Civ.P. 8(a)(2), in order to “give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Conley v. Gibson,
“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.’ ” Ashcroft v. Iqbal,
III. LAW AND ANALYSIS
A. Kovac’s Federal and State Discrimination Claims Are Not Arbitrable under the Collective Bargaining Agreement
The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., manifests “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
The Sixth Circuit applies a four-pronged test to determine whether to grant motions to dismiss or stay the proceedings and compel arbitration:
(1) The Court must determine whether the parties agreed to arbitrate;
(2) The Court must determine the scope of that agreement;
(3) If federal statutory claims are asserted, the Court must consider whether Congress intended those claims to be non-arbitrable; and
(4) If the Court concludes that some, but not all, of the claims in the action are subject to arbitration, it must determine whether to stay the remainder of the proceedings pending arbitration.
Stout v. J.D. Byrider,
Article X of the CBA, entitled “Arbitration,” calls for binding arbitration of any “grievance, controversy or dispute” that remains unsettled after the grievance procedure, also detailed in the CBA, is exhausted. (ECF No. 4-2 at 73.) Section 1 of Article IX, entitled “Grievances,” • defines a “grievance” as “any controversy or dispute arising between the parties to this Agreement, as to the interpretation or application of the terms and provisions of this Agreement.” (ECF No. 4-2 at 72.) Section 2 of Article IX begins:
Thus, should such differences or disputes of any kind arise between the parties to this Agreement or between the employеes covered herein and the Employer, the aggrieved party to this Agreement or employee or employees, as the case may be, shall use the following [grievance] procedure as the sole means of settling said difference, dispute or controversy in the following manner.
(ECF No. 4-2 at 72-73.)
Citing 14 Penn Plaza LLC v. Pyett,
The proper starting point for analysis of this issue, however, is not Pyett, but Wright v. Universal Maritime Serv. Corp.,
Sixth Circuit case law shows that the “clear and unmistakable” standard is not easily met. In Bratten, the court noted that “post-Wright courts appear to be in agreement that a statute must specifically be mentioned in a CBA for it to even approach Wright’s ‘clear and unmistakable’ standard.”
With respect to Kovac’s state law discrimination claim, Superior argues that “[t]he analysis is altogether different” because “no federally protected interest is at stake[,]” that the analysis must be made under Ohio law, and that Ohio law requires arbitration. (ECF No. 10 at 181-84.) In reality, the analysis under Ohio law is exactly the same, becаuse Ohio courts have explicitly adopted Wright’s “clear and unmistakable” standard. Smith v. Bd. of Trs. of Lakeland Cmty. Coll.,
Defendant asks the Court to recognize “the unusual sweep of the grievance and arbitration language” in the CBA; arguing, essentially, that use of broad, nonspecific language evidences a “clear and unmistakable” agreement to arbitrate statutory employment discrimination claims. (ECF No. 10 at 170.) Defendant would turn the law completely on its head. It is exactly this sort of general arbitration provision, without any reference to specific antidiscrimination statutes, that the Court in Wright found failed to constitute a waiver of statutory discrimination claims. See Wright,
Because the CBA does not contain a “clear and unmistakable” waiver of employees’ rights to pursue statutory nondiscrimination claims in a judicial forum, Superior’s motion to compel arbitration lacks merit and is denied.
Title VII of the Civil Rights Act of 1964 states that, should the EEOC elect not to prosecute an employment discrimination charge, the EEOC “shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge.... ” 42 U.S.C. § 2000e-5(f)(1). “[T]he ninety-day filing requirement of 42 U.S.C. § 2000e-5(f)(l) is not a jurisdictional requirement but, instead, is a timing requirement similar to a statute of limitations, subject to waiver, estoppel and equitable tolling.” Truitt v. Cnty. of Wayne,
“The statute of limitations is an affirmative defense, see Fed.R.Civ.P. 8(c), and a plaintiff generally need not plead the lack of affirmative defenses to state a valid claim, see Fed.R.Civ.P. 8(a).” Cataldo v. U.S. Steel Corp.,
Superior argues in its motion that notice is given, and the ninety-day limitations period begins to run, at the very moment the EEOC places the right-to-sue letter to a claimant in the mail. (ECF No. 7 at 144.) However, the Sixth Circuit has explicitly ruled that, under § 2000e5(f)(1), the limitations period begins running on the fifth day following the EEOC’s mailing of a right-to-sue notice to a claimant’s residential address of reсord, based upon a presumption of actual delivery and receipt by that time. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
In a footnote, Superior also argues that, even with the five-day rule, Kovac’s federal discrimination claim is untimely, citing LR 4.2(c), which allegedly establishes a presumption that mail will have reached an addressee “within four days.” (ECF No. 4-1 at 31 n. 7.) LR 4.2(c) deals with service of process, not the mailing of an EEOC right-to-sue notice. Moreover, a presumption that delivery occurs “within four days” operates identically to a rule whereby a statute of limitations began to run on the fifth day following mailing.
Applying the Sixth Circuit’s five-day rule, Kovac’s federal discrimination claim was timely filed. The EEOC mailed its right-to-sue notice on February 24, 2012, and therefore the limitations period began to run five days later, on February 29, 2012. Kovac thus had ninety days from February 29, 2012 to file his claim, encompassing the period up to and includ
C. Kovac Is Not Barred From Asserting His State Law Discrimination Claim
Superior also asserts that Kovac’s state law discrimination claim, too, should be dismissed as untimely. According to Superior, because Kovac failed to appeal the OCRC’s unfavorable January 12, 2012 decision on reconsideration, his claim under Ohio Rev.Code § 4112.02 is time-barred. (ECF No. 4-1 at 33-34.)
The Ohio Supreme Court has construed Chapter 4112 of the Ohio Revised Code liberally, finding that an individual may file a separate, independent civil action after having commenced a proceeding for disability discrimination with the OCRC, even in the event the OCRC had responded unfavorably and the claimant abandoned the administrative appeal process. Smith v. Friendship Village of Dublin, Inc.,
D. Kovac Has Failed To State a Claim for Intentional Infliction of Emotional Distress
Under Ohio law, the elements of a claim of intentional infliction of emotional distress (“IIED”)
(1) the defendant intended to cause emotional distress or knew or should have known that its conduct would result in serious emotional distress to the plaintiff;
(2) defendant’s conduct was outrageous and extreme and beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community;
(8) defendant’s conduct was the proximate cause of plaintiffs psychic injury; and
(4) plaintiffs emotional distress was serious and of such a nature that no reasonable person could be expected to endure it.
Talley v. Family Dollar Stores of Ohio, Inc.,
Under Ohio law, an at-will employee may be terminated at any time for any lawful reason or for no reason at all. Herrington v. DaimlerChrysler Corp.,
In Count Three of his complaint, Kovac alleges, in pertinent part:
41.... Defendant Superior Dairy acted ... intentionally by subjecting Plaintiff Kovac to unwelcome discrimination on the basis of his disability.
42. Defendant’s conduct towards Plaintiff Kovac was extreme and outrageous.
43. As a direct and proximate result of these breaches, Plaintiff Kovac suffered severe and debilitating emotional distress, mental anguish, lost wages and benefits, humiliation, loss of reputation, and other compensatory damages.
(ECF No. 1-3 at ¶¶ 41-43.)
In the instant matter, while Kovac may arguably have satisfied the requirements for pleading the third and fourth elements of an IIED claim in a “bare bones” fashion, Kovac has not satisfactorily pleaded the first and second elements. With respect to the first element, Kovac has not pleaded that Superior intended to cause him emotional distress, nor that Superior knew or should have known that its conduct would result in serious emotional distress. With respect to the second element, Kovac has not supported his legal conclusion with factual allegations that might plausibly give rise to a finding that
Because Kovac’s complaint fails to state an IIED claim that is plausible on its face, Superior’s motion to dismiss Count Three is granted.
IV. CONCLUSION
For the foregoing reasons, Superior’s motion for summary judgment (motion to compel arbitration) is DENIED, and Superior’s motion to dismiss is GRANTED IN PART and DENIED IN PART. Count Three of Kovac’s complaint for intentional infliction of emotional distress is DISMISSED. This case shall proceed only as to Kovac’s federal and state law discrimination claims (Counts One and Two).
IT IS SO ORDERED.
Notes
. References to specific pages in the record are made to the continuous pagination applied by the electronic docketing system.
. In the introduction preceding Superior's memorandum in support of its motion, Superior makes the additional broad assertion that all of Kovac’s claims fail to state a claim upon which relief may be granted, but only goes on to argue failure to state a claim with respect to Kovac's negligent and/or emotional distress claim.
. It is unclear whether Exhibits A-E are exhibits to Superior's motion or to the affidavit attached to the motion. Regardless, the Court's decision not to consider the affidavit from Superior's Human Resources Manager is completely independent of the Court’s handling of the exhibits.
. As plaintiff points out, the Court in Pyett did not even address whether the arbitration provision in the governing CBA was “clear and unmistakable,” because the party opposing arbitration had already acknowledged on appeal that it was. Pyett,
. In contrast, the CBA in Pyett contained a specific antidiscrimination provision, explicitly referenced arbitration of disсrimination claims, and provided a list of federal antidiscrimination laws, claims under which would be arbitrated. Pyett,
. The Court finds it, frankly, incredible that neither party cited Wright or Bmtten at any point in the briefing, particularly as the Pyett majority and dissent mention Wright by name a total of sixteen times (which, coincidentally, is also the same number of times Bmtten mentions Wright by name). The Court reminds the parties that they have a duty to bring relevant authority to the attention of the Court. Additionally, the Court disapproves of the unprofessional tenor of some of the briefing submitted on behalf of the defendant and trusts that future filings with the Court will exhibit a more appropriate tone.
. Because the outcome is the same under both federal law and Ohio law, the Court dеclines to address whether, as a matter of federal law, the Wright standard applies to state law claims.
. The Court's finding makes it unnecessary to examine plaintiff's alternative argument that the scope of the arbitration provision of the CBA is ambiguous. However, the Court notes that the parties again debated the issue without either side identifying the controlling legal standard: the Supreme Court's pronouncement that “ambiguities as to the scope of [an] arbitration clause itself” are to be “resolved in favor of arbitration.” Volt Info. Servs., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,
. In the event that Superior derived its argument from LR 4.2(c)’s instruction that an attorney requesting service by the Clerk’s office endorse a summons with an answer date 24 days later than the date of mailing, it bears noting that, given the 21-day answer period provided by Fed.R.Civ.P. 12(a)(1)(A)(i), Superior should have asserted that mail is presumed delivered within three days. In that regard, the direction in LR 4.2(c) resembles Fed.R.Civ.P. 6(d)’s provision for allowing three additional days for a party to respond to certain methods of service, including mailing to a person’s last known address. In Graham-Humphreys, the Sixth Circuit explicitly extended the delivery period provided by Rule 6(d) (formerly Rule 6(e)) by two additional days.
. Even if Kovac had filed after May 29, 2012, his federal discrimination claim could not be dismissed at this stage. Kovac did not include the date he received the EEOC's right-to-sue notice in his complaint, nor did he have to. See Cataldo v. U.S. Steel Corp.,
. In contrast, if Kovac were alleging age discrimination, his decision to file a charge with the OCRC would have foreclosed the bringing of a separate civil suit. Ohio Rev. Code § 4112.02(N); Friendship Village,
. Although Kovac's complaint only explicitly demarcates a claim for IIED, Kovac uses language that could be interpreted as also asserting claims for negligent and/or reckless infliction of emotional distress. (ECF No. 1-3 at 40-41.) Identifying this, Superior argues that Ohio law does not recognize a claim for negligent infliction of emotional distress in the employment setting (ECF No. 4 at 34), and Kovac concedes the point (ECF No. 7 at 148). Superior does not reference reckless infliction of emotional distress, nor does Kovac in defending his intentional infliction of emotional distress claim. However, “[u]nder Ohio law, reckless infliction of emotional distress is the same cause of action as intentional infliction of emotional distress.” Ward v. Cnty. of Cuyahoga,