Allgeyer v. City of Cincinnati, Case No. 1:16-cv-1128

MARY JILL ALLGEYER Plaintiff, v. CITY OF CINCINNATI, et al., Defendants.

Case No. 1:16-cv-1128

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

October 5, 2017

Barrett, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

On December 6, 2016, Plaintiff, proceeding pro se, filed a motion to proceed in forma pauperis and attached her tendered complaint against the City of Cincinnati and two individuals, Harry Black and Georgetta Kelly. On December 22, 2016, despite expressing "reservations" based upon Plaintiff's income level, the undersigned nevertheless granted her leave to file without payment of the $400.00 filing fee. (Doc. 2). Thereafter, the Court held a telephonic scheduling conference and set pretrial deadlines in this case. (Doc.11).

On July 5, 2017, Defendants moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff filed a response on July 31, 2017, to which Defendants filed no reply. The undersigned now recommends that Defendants' motion be construed as a motion for summary judgment under Rule 56, Fed. R. Civ. P., and GRANTED in part and DENIED in part.

I. Background

In her complaint, Plaintiff alleges that during her long employment with the City, she has been subjected to age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), and to reverse race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Plaintiff identifies herself as a Caucasian female and alleges that she was wrongfully terminated from her employment (in 1993), has been denied promotion multiple times, and generally has experienced unequal terms and conditions during her employment. (Doc. 3 at 4). She alleges that she faces an ongoing or continuing course of discrimination. (Id.)

"Before a plaintiff alleging discrimination under Title VII can bring suit in federal court, she must satisfy two administrative prerequisites: '(1) by filing timely charges of employment discrimination with the EEOC, and (2) receiving and acting upon the EEOC's statutory notices of the right to sue.'" Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003)(quoting Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486 (6th Cir. 1989))(other citations omitted). Here, Plaintiff's complaint asserts that the EEOC issued a Notice of Right to Sue on September 22, 2016, the same date that she filed her Charge of Discrimination with that agency. As relief for her grievances in this Court, she seeks "missing vacation benefits, seven years added to lost retirement years, and $300,000." Although Plaintiff attached a copy of the relevant Charge to her complaint, this Court previously noted that her complaint appears to encompass more than one EEOC charge, given that another exhibit to her complaint is an earlier "EEOC complaint" dated August 28, 2015, which lists race and gender and the Lilly Ledbetter Fair Pay Act of 2009, as the basis for that charge. A third document attached toPlaintiff's complaint in this Court is a decision by the Equal Employment Opportunity Advisory Review Board ("EEOARB"), dated December 19, 2015, that refers to Plaintiff's presentation of multiple claims to that administrative body on November 24, 2015.¹ (Doc. 3-1 at 8).

While declining to dismiss any claims on initial screening as time-barred or for failure to state a claim, the undersigned wrote:

The date of the latest filed EEOC Notice suggests that suit may be timely for at least one claim, although the underlying allegations and other documents create some ambiguity as to that issue.² Rather than attempting to resolve the issue in the context of the preliminary review applicable to claims screened under 28 U.S.C. § 1915(e), the undersigned will direct the Defendant(s) to file a response. Compare Barnes v. Cable, 2016 WL 3350787 (S.D. Ohio May 3, 2016) (recommending dismissal of all employment claims as time-barred under 28 U.S.C. § 1915(e), among other reasons). Because the Defendant(s) will be served with the complaint, they can clarify which Defendant(s) are Plaintiff's "employer" in any answer or response. See generally Wathen v. General Electric Co., 115 F.3d 400 (6th Cir. 1997).

(Doc. 2 at 2-3) (footnote original).

II. Analysis

Pursuant to this Court's scheduling order, motions directed to the pleadings were due to be filed not later than April 28, 2017. Although Defendants' Rule 12(c) motion was filed without leave of this Court outside of that deadline, Plaintiff did not object. In the interests of justice, the undersigned has considered the motion as if it had been timely filed under the Court's scheduling order. Alternatively, because the motion is not solely directed to the pleadings but contains matters that can only be considered underRule 56, the motion is timely because it is a dispositive motion. Discovery in this case remains ongoing, and the deadline for the filing of all dispositive motions does not expire until February 12, 2018.

A. Consideration of Exhibits Relating to Defendants' Motion

Defendants have attached multiple pages, totaling 57 pages in all, as exhibits in support of their motion for judgment on the pleadings.³ In addition to her 19-page responsive memorandum, Plaintiff has attached a total of 189 additional pages of exhibits to be considered in opposition to the Defendants' motion.⁴

In Luis v. Zang, 533 F.3d 619 (6th Cir. 2016), the Sixth Circuit reiterated that matters outside of the complaint itself, which are not "referred to in the complaint," may not be considered in the context of a motion that seeks judgment based solely on the alleged deficiency of a complaint. In Zang, this Court had considered an affidavit attached to a motion to dismiss. The Sixth Circuit noted that such consideration was improper absent conversion of the motion to one for summary judgment under Rule 56.

A court evaluating a motion to dismiss may, as noted above, consider "the complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein." Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (alterations and internal quotation marks omitted)....

Rule 12(d) of the Federal Rules of Civil Procedure confirms this conclusion. That rule provides that if, "on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded bythe court, the motion must be treated as one for summary judgment under Rule 56."

Id., 833 F.3d at 632.

The undersigned has reviewed the exhibits attached to both Defendants' motion and Plaintiff's response, and concludes that a portion of those documents would be excluded from consideration if this Court were to limit its scope of review to Rule 12. See generally U.S. ex rel. Antoon v. Cleveland Clinic Foundation, 978 F.Supp.2d 880, 887-88 (S.D.Ohio 2013) (documents "integral to the complaint" may be considered only if their "authenticity, validity, or enforceability" is not in dispute). Defendants point out that the Sixth Circuit has held that "judgment on the pleadings under Fed. R. Civ. P. 12(c) is uniquely suited to disposing of a case in which a statute of limitations provides an effective bar against a plaintiff's claim." Filer v. Polston, 886 F.Supp.2d 790, 794 (S.D.Ohio, 2012), quoting Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir.1994) (internal quotation marks and additional citation omitted). However, the failure of Plaintiff's complaint to detail relevant dates requires consideration of some exhibits that do not appear to be directly referenced by Plaintiff in her complaint.⁵

Although at least some of the documents would be subject to exclusion under Rule 12(c) standards, it is clear that consideration of otherwise potentially excluded exhibits is highly relevant to the determination of whether this lawsuit is time-barred. Moreover, Plaintiff herself has not only fully responded to the Defendants' motion and exhibits, but has attached an additional 189 pages of exhibits with her opposition.Instead of excluding exhibits tendered by both parties, the undersigned will convert and construe Defendants' motion as one for summary judgment. Accord Stringer v. National Football League, 474 F.Supp.2d 894, 914 (S.D. Ohio 2007) (construing Defendants' motion as one for summary judgment, reasoning that "where both parties rely on matters outside the pleadings, neither party will be surprised or prejudiced by the conversion to a Rule 56 motion") (additional citations omitted). Based upon the fact that Plaintiff has fully responded to Defendants' arguments and exhibits, no additional notice is required prior to the Court's consideration of the motion under Rule 56 standards.⁶ See Wysocki v. International Business Machine Corp., 607 F.3d 1102, 1104-05 (6th Cir. 2010) (decision to convert motion to dismiss to motion for summary judgment subject to review only for abuse of discretion, with notice of conversion of motion to opposing party not required unless opposing party likely to be surprised).

B. Standards of Review

1. Applicable Standard for Summary Judgment

On summary judgment, "a court must view the facts and any inferences that can be drawn from those facts...in the light most favorable to the nonmoving party." Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.2007) (internal quotation marks omitted). "Summary judgment is only appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Id. (quoting Fed. R. Civ. P. 56(c)) (internal quotation marks omitted). "Weighing of the evidence or makingcredibility determinations are prohibited at summary judgment-rather, all facts...