Howe v. Wilson Sporting Goods Co.

Christina Howe, Plaintiff, v. Wilson Sporting Goods Co., Defendant.

No. 3:21-cv-01530-JGC

United States District Court, N.D. Ohio, Western Division

January 4, 2022

ORDER

James G. Carr, Sr. U.S. District Judge.

In this action, plaintiff Christina Howe alleges that Defendant Wilson Sporting Goods Co. (“Wilson”) terminated her employment in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (the “FMLA”) the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq. (the “ADA”), and Ohio's Civil Rights Commission statute, O.R.C. § 4112.01. Pending is Wilson's Motion for Judgment on the Pleadings. (Doc. 7).

For the reasons set out below, I deny Wilson's motion as to Howe's FMLA claims and grant it as to her disability discrimination claims.

Background

Howe's complaint contains the following material factual allegations regarding her FMLA claim.

Howe began working for Wilson in 2002 as a lacer. (Doc. 1, pgID 2). Her son suffered from Dravet Syndrome, a rare, drug resistant form of epilepsy.^[1] In or about October 2016, Howe applied for intermittent FMLA leave to care for her son, and Wilson approved it. (Id., pgID 3).

Despite approving Howe's FMLA leave, Wilson gave Howe disciplinary points when she missed work to care for her son. (Id.). Wilson ultimately terminated her employment as the result of her missing work for FMLA leave. (Id.).

On or about March 13, 2020, Wilson reinstated Howe to her position. (Id.). On or about May 6, 2020, Howe did not show up for work and did not call off until three hours later because her son had a series of seizures that kept her awake most of the prior night, and she slept through her alarm. (Id.). That same day, Wilson terminated Howe's employment for a second time based on her attendance. (Id., pgID 3-4).

As to Howe's disability discrimination claims, the complaint alleges that her son has a disability that significantly limits him in one or more major life activities. (Id., pgID 3). Wilson knew of Howe's son's condition and discriminated against her based on the that disability or its perception of that disability. (Id., pgID 6).

Discussion

1. FMLA Claims

After her termination, Howe sought unemployment compensation from the Ohio Department of Job and Family Services. (Doc. 6-3 pgID 84). That department denied her claim, and she appealed to the Ohio Unemployment Compensation Review Committee (the “Committee”). After a hearing in which Howe appeared pro se, the Committee denied her application, finding that she was terminated for just cause. (Id., pgID 86).

In its opening brief, Wilson argued that the Committee's decision “establish[es]” as “uncontroverted” fact that it fired Howe for just cause. (Doc. 7, pgID 100). It also contended that the Committee's decision conclusively establishes that Howe was not eligible for FMLA leave because she had not worked long enough to qualify for such leave. (Id., pgID 100-01). Neither argument has merit.

A. The Committee Decision's Preclusive Effect

Wilson argues that I may take judicial notice of the Committee's decision as a public record. That argument is true as far as it goes, but it does not go nearly as far as Wilson would have it.

“[J]udicial notice does not apply to establish the truth of a factual dispute.” Davidson v. Warden, Warren Corr. Inst., No. 2:18-CV-00495, 2021 WL 1964487, at *1-2 (S.D. Ohio) (citing In re Unumprovident Corp. Sec. Litig., 396 F.Supp.2d 858, 878 (E.D. Tenn. 2005)). “‘[A] court may take notice of the documents and what they say, but it [cannot] consider the statements contained in the document for the truth of the matter asserted.' In other words, a court may take judicial notice of the document's existence but cannot take judicial notice of the document's substance.” Id. (citations and internal quotation marks omitted) (quoting Platt v. Bd. of Comm'rs on Grievs. & Discipline of Ohio Supreme Court, 894 F.3d 235, 245 (6th Cir. 2018)).

Indeed, even as to court records, a subsequent court “will only take notice of the existence of these filings and their contents. Not only would considering their contents to resolve factual disputes be improper, but on a Rule 12(c) motion the Court must regard the factual allegations in the complaint as true.” United Pet Supply, Inc. v. City of Chattanooga, 921 F.Supp.2d 835, 843-44 (E.D. Tenn. 2013) (emphasis in original) (citations omitted).

Thus, I may take notice that the Committee denied Howe's claim, but I cannot properly take notice of the merits of that denial.^[2]

Wilson is mistaken when it attempts to expand the doctrine of judicial notice to give the Committee's decision preclusive effect. As the court in McCarthy v. KFC Corp., 607 F.Supp. 343, 346 (W.D. Ky. 1985), explained:

If this allegation is an attempt to have the Court give preclusive effect to that finding, the attempt is fruitless. Even if the Court were to elevate the decision of the Commission to the level of an arbitrator's award, it cannot be given preclusive effect. McDonald v. City of West Branch, Michigan, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984).

“Because § 1983 creates a cause of action, there is, of course, no question that Congress intended it to be judicially enforceable.” McDonald v. City of W. Branch, Mich., 466 U.S. 284, 290 (1984). The Supreme Court has held that even an arbitrator's decision is not entitled to preclusive effect for claims based on 42 U.S.C. § 1983, stating that its “decisions in Barrentine and Gardner-Denver compel the conclusion that it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.” (Id.)

Thus, a decision of the Ohio Unemployment Compensation Review Commission “is not relevant for purposes of determining whether plaintiff has satisfied the legal burdens she bears associated with proving pretext in an employment discrimination lawsuit.” Durden v. Ohio Bell Tel. Co., No. 1:12 CV 734, 2013 WL 1352620, at *9 (N.D. Ohio) (Gaughan, J.).

In its reply brief, Wilson alters its position, arguing that rather than giving the just cause finding estoppel effect, I should treat it as “undisputed evidence “which requires judgment in favor of Wilson.” (Doc. 10, pgId. 122).^[3] Wilson contends that I should treat the finding as undisputed because “Howe could have come forward with evidence to the contrary.” (Id.).

Howe's new argument misses the point. A motion for judgment on the pleadings is not a vehicle for resolution of disputed facts. See Certain Underwriters at Lloyd's of London Subscribing to Policy, 855 Fed.Appx. 260, 270 (6^th Cir. 2021). This is not a summary judgment motion. Howe had no obligation to present contrary factual evidence in response to create a triable issue of material fact.

Indeed, Howe could not properly have done so because, as Wilson recognizes, in deciding its Rule 12(c) motion, I may consider only “the complaint, the defendant's motion to dismiss as well as ‘public records and matters of which a court can take judicial notice.'” Had I permitted Howe to present contrary evidence, I would have been required to convert the motion to a summary judgment motion. Had I done so, Howe would be entitled to discovery before filing a response.

There has been no opportunity for discovery in this case. At this early stage, I will not permit Wilson to pursue summary judgment without discovery merely because it has filed a meritless Rule 12(c) motion.^[4]

B. Wilson's Argument that Howe Was Not Qualified for FMLA Leave

Wilson argues that the Committee's decision conclusively establishes that Howe “had not worked long enough to be eligible for FMLA.” (Doc. 7, pgID 100). Even apart from my holding above that the Committee's decision is not preclusive, the argument lacks merit. It simply mischaracterizes the record. The paragraph Wilson cites from that decision reads:

Claimant thought the reason she did not appear for work on May 6, as well as the reason she failed to timely call off, were the type of situation which would not count against her, according to the last chance agreement. Employer stated that the late call off and the unapproved absence on May 6 were both violations of the last chance agreement. The leave was not approved because claimant had not worked long enough to be eligible for FMLA. Claimant also disputed she had seven and a half occurrences on February 11, 2020, however she did sign the last chance agreement.

(Doc. 6-3, pgID 85).

It is readily apparent that, in the quoted paragraph, the Committee was merely recounting the parties' positions, not adopting either of them. Indeed, the Committee's subsequent paragraphs titled “Issue, ” “Law, ” “Reasoning” and “Decision” solely address the issue whether Wilson had just cause for the termination and did not even mention FMLA-eligibility. The argument that the Committee made any determination as to FMLA eligibility is untenable.

2. Disability Discrimination Claims

Howe contends in Count III of her complaint that Wilson discriminated against her based on her son's disability. The ADA precludes discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” (“associational discrimination”) 42 U.S.C. § 12112(b)(4).^[5]

Associational discrimination claims are analyzed under the traditional McDonnell Douglas Corp. v. Green burden-shifting analysis. Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011). Under that analysis:

a plaintiff must first prove a prima facie case of retaliation, and the burden then shifts to the defendant to provide a legitimate, non-discriminatory reason for the plaintiff's termination. . . . If the

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