James Martin v. Block Communications, Inc., et al.
Court of Appeals No. L-16-1213
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: April 21, 2017
[Cite as Martin v. Block Communications, Inc., 2017-Ohio-1474.]
MAYLE, J.
Trial Court No. CI0201602367. James Martin, pro se. Mathew B. Beredo and Keith Wilkowski, for appellees.
James Martin, pro se.
Mathew B. Beredo and Keith Wilkowski, for appellees.
*****
MAYLE, J.
{¶ 1} Plaintiff-appellant, James Martin, appeals the September 13, 2016 judgment of the Lucas County Court of Common Pleas denying him leave to file an amended complaint and granting defendants-appellees‘, Block Communications, Inc. and Buckeye
I. Background
{¶ 2} Martin is a former employee of Block Communications and Buckeye Cablevision (collectively “Block“). On April 15, 2016, he filed a pro se complaint in the Lucas County Court of Common Pleas alleging that Block committed discriminatory employment practices in violation of
{¶ 3} Martin began working part-time as a technical support specialist for Block in October 2014. During that time he also attended classes at Owens Community College and was an active political candidate and member of the Lucas County Republican Party. Martin claims to have told Block about his ongoing schooling and political activities during the hiring process. In February 2015, Block laid off about half of its technical support specialists and moved Martin into a full-time position to fill staffing gaps. Other employees were offered severance, early retirement, relocation, or layoff with the option to be rehired.
{¶ 4} Martin then began working a full-time schedule that required him to work six days a week, Monday through Friday from 5:00 p.m. to 11:00 p.m. and Saturday from noon to 11:30 p.m., with the potential for mandatory overtime on Sundays. Block held a schedule bid in April 2015. Employees were able to bid on their preferred shifts; schedules were then awarded based on performance and seniority. After the bid Martin
{¶ 5} On April 28, 2015, Martin received a semi-annual performance evaluation. Although the evaluation contained positive comments about Martin‘s job performance, his supervisor also noted that Martin was late to work six times in his first six months of employment. His supervisor warned him that “[he] does need to make sure to arrive to work on time each shift.” One month later, Martin failed to appear for a scheduled shift and was disciplined under Block‘s progressive discipline policy. At that time, he received an “Oral Reminder,” which is Step 1 of Block‘s Customer Operations Disciplinary Practice.
{¶ 6} Block held another schedule bid in July 2015. Martin‘s disciplinary record left him ineligible to choose from many of the available shifts. He claimed that the shifts from which he could choose were “equally unfavorable” to him. In August 2015 he was moved to a five-day work week with eight-hour shifts, Thursday through Saturday from 3:00 p.m. to 11:30 p.m.
{¶ 7} Martin was unhappy with his new schedule and requested that management either return him to a four-day work schedule or allow him to go back to working part-time so he could finish his college classes. His direct supervisor denied the request, but stated that he could resign and then return when he finished his studies. Martin was not interested in this option and appealed his supervisor‘s decision to the Customer Operations Manager. The manager denied Martin‘s appeal, stating that Block could not
{¶ 8} Martin‘s tardiness problems continued in August and September 2015, leading to further disciplinary actions. Block gave Martin a “Written Reminder,” Step 2 of the disciplinary process, and placed Martin on a performance improvement plan through the end of October. He claimed that a supervisor told him the performance improvement plan was “pointless” because it dealt with tardiness issues rather than job performance issues. On or about October 15, 2015, Martin again asked to be moved to a part-time schedule. Block denied his request even though it had recruited new technical support employees by this time. On November 17, 2015, Martin arrived over six hours late for a shift, allegedly because he was unaware that his regular work hours had been changed. Block then escalated its disciplinary measures to Step 3 of its policy and issued Martin a “Written Warning.”
{¶ 9} During the last week of December 2015, Martin requested personal leave to visit his sick step-grandmother. Block denied the request, telling Martin he would need a doctor‘s note to take personal leave. Martin claimed he could not obtain a doctor‘s note because his step-grandmother lived in Oklahoma. Martin also alleged that he had a sufficient personal leave balance to cover the requested time off.
{¶ 10} After this incident, Block requested that Martin meet with the human resources department. On January 5, 2016, Martin met with a Block human resources representative and a technical support supervisor. At that meeting, Block asked Martin to
{¶ 11} On April 15, 2016, Martin filed his initial complaint against Block, claiming that Block unlawfully discriminated against him in violation of
{¶ 12} On May 13, 2016, Block filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. It argued that the
{¶ 13} Martin then filed a motion for leave to file an amended complaint on June 13, 2016, which was 31 days after Block filed its Civ.R. 12(B)(6) motion. He did not file the proposed amended complaint with his motion, but he submitted a copy of the unfiled pleading to the courtroom. Martin removed the federal law claims and the claim under
{¶ 14} On July 14, 2016, while the motion for leave to amend was pending, Martin filed a second memorandum in opposition to Block‘s Civ.R. 12(B)(6) motion to
{¶ 15} On August 17, 2016, the trial court filed an order related to Martin‘s motion for leave to amend. It stated that “the attached copy of [Martin‘s] proposed Amended Complaint shall be filed with the Motion for Leave to File an Amended Complaint as an exhibit, deemed submitted as of June 13, 2016, and held until ruling on [Martin‘s] Motion for Leave to File an Amended Complaint.” Martin, however, never filed the proposed amended complaint or otherwise placed it in the record.
{¶ 16} The trial court issued its opinion and judgment entry on September 13, 2016. It found that Martin failed to amend his complaint within 28 days after Block filed its Civ.R. 12(B)(6) motion to dismiss and, therefore, Martin could not amend his complaint without leave of court under Civ.R. 15(A). The court then denied leave to amend after finding that the proposed amended complaint would not cure the pleading deficiencies of the original complaint. With leave to amend denied, the only pleading before the trial court was the original complaint that was the subject of Block‘s Civ.R. 12(B)(6) motion to dismiss. The court granted Block‘s motion to dismiss, finding that Martin failed to allege facts supporting each element of his discrimination claims. Martin now appeals, setting forth two assignments of error:
The trial court committed prejudicial error by denying Appellants’ [sic] motion for leave to file first amended complaint based upon its opinion that the amended complaint lacked sufficient operative facts to support an unlawful discriminatory practice claim and that the filing were [sic] untimely and futile.
SECOND ASSIGNMENT OF ERROR:
The trial court committed prejudicial error by granting Defendant‘s [sic] motion to dismiss based upon its opinion that Plaintiff‘s amended complaint did not address the deficiencies contested in the original complaint.
II. Law and Analysis
A. Leave to Amend the Complaint
{¶ 17} Martin first argues that the trial court erred in finding that he was not entitled to amend his complaint as a matter of course and in denying his motion for leave to amend on the basis that the amendment was futile. Block contends that Martin filed his motion for leave to amend out of time and, therefore, the trial court correctly found Martin was not entitled to amend his complaint as a matter of course. Block also argues that the trial court correctly denied Martin‘s motion for leave to amend because the amendment was futile. We address each of these arguments in turn.
{¶ 18} Under Civ.R. 15(A), a party may amend a pleading to which a responsive pleading is required once as a matter of course within 28 days after service of the responsive pleading or 28 days after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. This right is absolute. Taylor v. Academy Iron & Metal Co., 36 Ohio St.3d 149, 156, 522 N.E.2d 464 (1988) (decided under former analogous section); and see Schisler v. Columbus Med. Equip., 10th Dist. Franklin No. 15AP-551, 2016-Ohio-3302, ¶ 23; see also Han v. Univ. of Dayton, 2d Dist. Montgomery No. 26343, 2015-Ohio-346, 28 N.E.3d 547, ¶ 58. Any other amendments require the consent of the opposing party or leave of court. Civ.R. 15(A). “The court shall freely give leave when justice so requires.” Id.
{¶ 19} Martin argues that he had a right to amend his complaint because Block had not yet filed an answer. This was true under a prior version of Civ.R. 15(A) (Former Civ.R. 15(A) stated, “[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *.“). But this rule was amended in 2013 to allow a party to amend its pleading without leave of court only until the earlier of 28 days after service of a responsive pleading or 28 days after service of a Civ.R. 12 motion. 2013 Staff Note, Civ.R. 15. A party has an absolute right to amend his pleading during the applicable 28-day period by filing an amended pleading.
{¶ 20} In addition, under Civ.R. 6(D), “[w]henever a party has the right or is required to take some act * * * within a prescribed period after the service of a notice or
{¶ 21} Block served its Civ.R. 12(B)(6) motion to dismiss by mail on May 13, 2016. Martin therefore had a right to amend his complaint by June 13, 2016—which was 28 days after service (Civ.R. 15(A)) plus an additional three days because Block served its Civ.R. 12 motion by mail (Civ.R. 6(D)). Although Martin filed a “Motion for Leave to File an Amended Complaint” on June 13, 2016, he did not file the amended complaint on that date. Indeed, as the trial court recognized in its opinion and judgment entry, Martin never filed the amended complaint or otherwise placed a copy of the pleading in the record. Because Martin did not file his amended complaint on June 13, 2016, he did not amend his pleading within the prescribed period for amendments “as a matter of course.”1
{¶ 22} The trial court therefore did not err in finding that leave of court was required for Martin to amend his complaint.
{¶ 23} Martin next argues that the trial court erred in denying his motion for leave to amend because, contrary to the court‘s finding, his proposed amended complaint corrected the pleading deficiencies of the original complaint. Martin argues that the proposed amended complaint alleges a prima facie case for employment discrimination under
{¶ 24} Martin‘s proposed amended complaint alleges a single claim against Block for unlawful discrimination under
because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
{¶ 25} Ohio courts hold that federal case law interpreting Title VII of the Civil Rights Act of 1964 is generally applicable to state-law discrimination claims under
{¶ 26} In rare cases, an employee may establish discriminatory intent through direct evidence that “the employer more likely than not was motivated by discriminatory intent.” Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 587, 664 N.E.2d 1272 (1996). Direct evidence is found, for instance, where an employer‘s policy is discriminatory on its face or where a statement by an employer directly shows there is a discriminatory motive. Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir.1998) (“Such [direct] evidence would take the form, for example, of an employer telling an employee, ‘I fired you
{¶ 27} Absent direct evidence of discriminatory intent, an employee alleging a violation of
{¶ 28} While these are the general requirements of a discrimination claim, Ohio courts apply a modified version of the McDonnell Douglas test in cases of “reverse discrimination“—i.e., where a member of a dominant group claims discrimination based on race or sex. In such cases, the first and fourth prongs are altered; the plaintiff must make a prima facie showing that (1) background circumstances support the inference that plaintiff‘s employer was the unusual employer who discriminated against non-minority
{¶ 29} The McDonnell Douglas test, however, is an evidentiary—rather than a pleading—standard. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Coryell at ¶ 25 (expressly adopting Swierkiewicz). This is because discovery may unearth direct evidence of discriminatory intent, thereby making the McDonnell Douglas test—which is applicable only in the absence of such direct evidence—wholly irrelevant to the case. “It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits * * *.” Swierkiewicz at 511-512. The plaintiff, therefore, does not need to plead facts sufficient to establish each of the McDonnell Douglas elements to survive a Civ.R. 12(B)(6) motion to dismiss; the plaintiff need only plead “a short and plain statement of the claim” under Civ.R. 8(A). To constitute fair notice under Ohio‘s liberal pleading rules, “the complaint must still allege sufficient underlying facts that relate to and support the alleged claim, and may not simply state legal conclusions.” Gonzalez v. Posner, 6th Dist. Fulton No. F-09-017, 2010-Ohio-2117, ¶ 11.
{¶ 31} The issue on appeal is therefore whether Martin made a prima facie showing of support for the new matters sought to be pleaded—i.e., a single claim for employment discrimination under
{¶ 32} In Ohio, a plaintiff asserting a claim for employment discrimination must allege facts that, if true, would establish that the employer somehow “discriminate[d] against” the plaintiff by discharging him without just cause, refusing to hire him, or
{¶ 33} Here, the proposed amended complaint alleges that Martin is a white male and suffered several adverse employment actions: Block refused to honor Martin‘s requests to move from a full-time schedule to a part-time schedule, Block refused to allow Martin to use personal time to visit his sick step-grandmother without a doctor‘s note, Block disciplined Martin for repeated tardiness and attendance issues, and Block terminated Martin‘s employment.
{¶ 34} The proposed amended complaint does not, however, contain any operative facts to suggest that Block unlawfully considered Martin‘s race when it refused his scheduling requests, disciplined him, or terminated him. Although Martin alleges that an
{¶ 35} Also, while Martin alleges that he was disciplined according to Block‘s written policies, he does not claim that any minority employees were disciplined less often or less harshly or that Block ignored its written policy when disciplining minority employees. Compare Jackson v. Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 7 (reversing Civ.R. 12(B)(6) dismissal of claim for race discrimination under
B. Civ.R. 12(B)(6) Motion to Dismiss
{¶ 37} In Martin‘s second assignment of error he contends that the trial court erred by granting Block‘s Civ.R. 12(B)(6) motion to dismiss his original complaint. But Martin does not argue that the Civ.R. 12(B)(6) ruling was incorrect on its merits. He argues that Block‘s motion to dismiss was rendered moot by his amended complaint, which he claims was “neither futile nor untimely” and “address[ed] the deficiencies contested in the original complaint.”
{¶ 38} But, as already discussed, Martin failed to file the amended complaint within the time allowed for amendment as a matter of course, and Martin‘s motion for leave to amend was properly denied by the trial court because the amended complaint failed to state a claim for discrimination pursuant to
{¶ 39} For these reasons, we find Martin‘s second assignment of error not well-taken.
{¶ 40} The September 13, 2016 judgment of the Lucas County Court of Common Pleas is affirmed. Martin is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
CONCUR.
JUDGE