Morrissette v. DFS Servs., L.L.C.Morrissette v. DFS Servs., L.L.C.
Rendered on May 17, 2011
Matan, Wright & Noble, and Eugene L. Matan, for appellant.
Ulmer & Berne LLP, William D. Edwards and Adrienne L. Rapp, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Plaintiff-appellant, Julien R. Morrissette, appeals from a judgment of the Franklin County Court of Common Pleas granting the
I. Facts and Procedural History
{¶2} Plaintiff filed his original complaint in November 2008; he voluntarily dismissed it without prejudice pursuant to
{¶3} On December 23, 2009 defendants filed a motion to dismiss plaintiff‘s complaint pursuant to
{¶4} Plaintiff responded to defendants’ motion to dismiss, contending not only did Gross not apply at the pleading stage but he sufficiently alleged facts indicating defendants engaged in reverse race discrimination against him. Plaintiff also requested
{¶5} Following defendants’ reply, the trial court filed its decision and entry on June 10, 2010 granting defendants’ motion to dismiss. Quoting from Gross, the trial court stated a plaintiff must prove by a preponderance of the evidence that age was the “but for” cause of the challenged adverse employment action. (Decision, 3.) The court concluded plaintiff, contrary to Gross, did not plead facts indicating his age was the exclusive basis for his termination. Accordingly, the trial court concluded plaintiff‘s complaint failed to state a claim for age discrimination.
{¶6} The court determined plaintiff‘s reverse discrimination claim also was lacking because he did not allege facts that might be direct or indirect evidence of discriminatory intent, such as “a ‘similarly situated’ black employee” receiving better treatment from DFS. (Decision, 5.) Concluding Stokes’ being of a different race than plaintiff was “not enough to prove that race motivated the decision to terminate his employment,” the court granted defendants’ motion to dismiss the complaint and denied plaintiff leave to amend his complaint. (Decision, 5.)
II. Assignments of Error
{¶7} Plaintiff appeals, assigning the following errors:
ASSIGNMENT OF ERROR NO. I:
The Trial Court erred when it granted Appellees’ Motion to Dismiss by applying a heightened form of evidentiary pleading of specifics to Appellant‘s Complaint instead of “a short and plain statement of the claim showing that the party is entitled to relief.”
Civ.R. 8(A)(1) . See Swierkiewicz v. Sorema, N.A. (2002), 534 U.S. 506, 122 S.Ct. 992.ASSIGNMENT OF ERROR NO. II:
The Trial Court erred in granting Appellees’ Motion to Dismiss Appellant‘s claim of age discrimination when the Court applied a “but for” test to Chapter 4112 claims.
ASSIGNMENT OF ERROR NO. III:
The Trial Court erred by holding that Appellant did not make a prima facie showing for his age discrimination claim.
ASSIGNMENT OF ERROR NO. IV:
The Trial Court erred in granting Appellees’ Motion to Dismiss on Appellant‘s claim of age discrimination by construing the evidence in favor of Appellee.
ASSIGNMENT OF ERROR NO. V:
The Trial Court erred by applying the test for summary judgment as opposed to the test for a 12B(6) motion in making its decision.
ASSIGNMENT OF ERROR NO. VI:
The Trial Court erred as a matter of law and to the prejudice of Appellant when it improperly considered evidence from the previously filed case and applied that evidence in its determination that Appellant failed to state a claim of age discrimination, and unlawful reverse discrimination.
ASSIGNMENT OF ERROR NO. VII:
The Trial Court erred when it failed to grant Appellant leave to file an Amended Complaint when it improperly considered evidence from the previously filed case and applied that evidence in making its decision not to grant Appellant leave.
Plaintiff‘s first five assignments of error are interrelated and will be addressed together; we address the sixth and seventh assignments of error separately.
III. First, Second, Third, Fourth, and Fifth Assignments of Error–Age Discrimination Claim
{¶8} Plaintiff‘s first five assignments of error assert the trial court erred when it applied a heightened form of evidentiary pleading to his complaint, requiring him to plead age was the “but-for” cause of his termination. Because plaintiff discusses the first and fifth assignments of error only in the context of the age discrimination claim, we do the same.
{¶9} Appellate review of a trial court‘s decision to dismiss a case, pursuant to
{¶10} Because Ohio is a “notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶29. ” ‘[A]s long as there is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grant a defendant‘s motion to dismiss.’ ” Id., quoting York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 145. In examining the trial court‘s decision to grant a motion to dismiss for failure to state a claim upon which relief may be granted, “we review the applicable law for each cause of action before us and determine whether
{¶11} Count One of plaintiff‘s complaint addressed unlawful age discrimination under
{¶12} “To prevail in an employment discrimination case, a plaintiff must prove discriminatory intent” and may establish such intent with either direct or indirect methods of proof. Ricker v. John Deere Ins. Co. (1998), 133 Ohio App.3d 759, 766, discretionary appeal dismissed (2000), 88 Ohio St.3d 1229, citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583, 1996-Ohio-265. When a plaintiff seeks to establish age discrimination indirectly, the plaintiff may establish discriminatory intent using the analysis set forth in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, as the Supreme Court of Ohio adopted it in Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, and more recently modified it in Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723. Coryell announced that, to establish a prima facie case of age discrimination in violation of
{¶13} Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a nondiscriminatory reason for the discharge. If the employer demonstrates a nondiscriminatory reason, the burden shifts back to the plaintiff-employee to establish the defendant-employer‘s stated reason is merely a pretext for discrimination. Id. at ¶24. The “shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ ” Kohmescher at 505, quoting Loeb v. Textron, Inc. (C.A.R.I.,1979), 600 F.2d 1003, 1014.
{¶14} Even so, the McDonnell Douglas framework for establishing discriminatory intent is an “evidentiary standard rather than a pleading standard.” Coryell at ¶25. In accordance with
{¶15} In the end, “plaintiffs do not have to establish a prima facie case of discrimination to survive
{¶16} Here, plaintiff‘s complaint alleged he was 56 years of age when defendants involuntarily terminated him from his employment in 2008. (Complaint ¶2, 5.) He alleged he worked at DFS for over 20 years and was consistently among the top collectors, winning three “Excellence Awards” during his employment. (Complaint ¶5.) According to plaintiff‘s complaint, DFS had a stated policy of discriminating against older employees in favor of substantially younger employees and replaced plaintiff with several employees under the age of 40. If plaintiff‘s allegations are construed to be true, he sufficiently stated a claim for age discrimination.
{¶17} The trial court relied on Gross in reaching the opposite conclusion. See Coryell at ¶15 (acknowledging that, although Ohio courts “are not bound to apply federal court interpretation of federal statutes to analogous Ohio statutes, we have looked to federal case law when considering claims of employment discrimination brought under
{¶18} The trial court improperly required plaintiff to allege in his pleading what must be proved if Gross were to apply at the trial stage: that age was the “but-for” cause of his termination. Plaintiff did not need to meet the evidentiary standard to allege a claim for age discrimination in his complaint; he needed only to satisfy
{¶19} Because plaintiff complied with
IV. Sixth Assignment of Error - Reverse Race Discrimination Claim
{¶20} Plaintiff‘s sixth assignment of error asserts the trial court erred in considering evidence outside the complaint when it granted defendants’ motion to dismiss. When a trial court considers a
{¶21} Defendants’ motion to dismiss included facts and arguments not contained in the complaint, including the name of the employee who accused plaintiff of making racist comments; plaintiff‘s complaint simply referred to the individual as the “African American employee.” (R. 22; Complaint ¶14, 18.) In responding to defendants’ motion, plaintiff asked the court to exclude those matters not contained in his complaint. The trial court complied with plaintiff‘s request and excluded those facts in defendants’ motion that were not alleged in plaintiff‘s complaint, with one exception: the court stated the name of the accusing employee. Plaintiff asserts that, because the trial court used the employee‘s name, the trial court must have considered the arguments it said it excluded.
{¶22} Although plaintiff is correct in noting the trial court used the employee‘s name, we have some difficulty concluding the trial court‘s misstep is the type of conduct the principle at issue is designed to address. The name of the employee did not change
{¶23}
{¶24} Plaintiff, again, need not establish his prima facie case in his complaint; he need only comply with the requirements of
{¶25} In contrast to Jackson, plaintiff failed to plead sufficient facts to put defendants on notice he was bringing a reverse race discrimination claim against them. Plaintiff alleged defendants unlawfully considered his race in deciding to terminate his employment, but in terms of operative facts plaintiff alleged only that an African-American accused him, an African-American fired him, and similarly situated employees who may have had similar claims brought against them were not subject to discipline. Plaintiff‘s allegations that African-Americans accused and fired him alone are insufficient to support his contention that defendants considered his race in deciding to terminate his employment.
{¶26} Had plaintiff alleged defendants treated him differently than other similarly situated minority employees, he would have bolstered his contention that defendants considered his race. By contrast, plaintiff‘s assertion that defendants treated him differently than similarly situated employees of all races is insufficient to allege plaintiff was subject to disparate treatment on account of his race. See Johnson at ¶50 (determining nurse‘s complaint alleging racial discrimination failed because the nurse failed to plead “operative facts such as her race or the nature of the discrimination“). Without operative facts to support the statement that defendants considered his race in deciding to fire him, the statement amounts to an unsupported conclusion and is insufficient to withstand a motion to dismiss. Wright, citing Grange Mut. Cas. Co.
{¶27} Because the trial court properly granted defendants’ motion to dismiss plaintiff‘s claims for reverse race discrimination, plaintiff‘s sixth assignment of error is overruled.
V. Seventh Assignment of Error – Leave to Amend
{¶28} Plaintiff‘s seventh assignment of error asserts the trial court erred in denying him leave to amend his complaint, as the court improperly considered factors from plaintiff‘s previously filed case.
{¶29} In plaintiff‘s memorandum opposing defendants’ motion to dismiss, plaintiff requested leave to amend to add additional facts such as the names of similarly situated employees and the names, ages, and salaries of employees hired after defendants terminated plaintiff. The court denied plaintiff leave to amend, noting the case was originally filed in November 2008, the parties conducted extensive discovery, and, due to the case being dismissed and re-filed, the “case overall ha[d] been pending for an extended period of time.” (Decision, 6.) With those factors, the court concluded “defendants would be prejudiced by filing the amended complaint at this date.” (Decision, 6.) Plaintiff contends the trial court erred in considering the total amount of time the case had been pending, and instead should have viewed the action as having just begun when he re-filed his complaint.
{¶30}
{¶31} Plaintiff contends that because his “voluntary dismissal pursuant to
{¶32} Williams v. Western Reserve Transit Auth., 7th Dist. No. 06-MA-137, 2007-Ohio-4747, however, addressed the issue and held the trial court did not abuse its discretion when it denied the plaintiff leave to amend his re-filed complaint. Williams pointed out the plaintiff‘s “original complaint was filed over two and a half years earlier,” so the plaintiff had ample time to clarify his theory of relief. Id. at ¶41. The court viewed the plaintiff‘s waiting nearly three years to amend his pleading as “a delaying tactic or, at the very least, one that would cause prejudice to” the defendant. Id.
{¶33} Similarly here, the trial court permissibly considered the total amount of time the action had been pending, including the previously filed but dismissed action, when it denied plaintiff leave to amend his complaint. Cf. Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶32-36 (concluding trial court did not abuse its discretion in considering total amount of time action had been pending, including previously filed but dismissed complaint, when court denied plaintiff‘s motion for an extension of time in which to file an affidavit of merit pursuant to
{¶34} Having sustained plaintiff‘s first and second assignments of error, rendering plaintiff‘s third, fourth, and fifth assignments of error moot, as well as the sixth assignment of error as it relates to the age discrimination claim only, and having overruled plaintiff‘s sixth and seventh assignments of error, we affirm in part and reverse in part the judgment of the trial court, and we remand this matter to the trial court for further proceedings consistent with this decision.
Judgment affirmed in part and reversed in part; case remanded.
FRENCH and DORRIAN, JJ., concur.
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