Kelly v. First Data Corp.

JULIE KELLY, Plaintiff, v. FIRST DATA CORPORATION, et al., Defendants.

Case No: 1:19-cv-372

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

January 27, 2020

Cole, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

Plaintiff Julie Kelly, proceeding pro se, initiated this action on May 20, 2019 by filing a complaint against her former employer, First Data Corporation, First Data's CEO, her former supervisor at First Data, two law firms that have represented First Data, and two individual attorneys with those law firms. Pursuant to local practice, this case has been referred to the undersigned for initial consideration. For the following reasons, I now recommend that the motions of the two law firms and individual attorneys be granted in full, and that the motion of First Data and its individual employees be granted except as to a single claim against First Data under the Americans With Disabilities Act.¹

I. Standard of Review

A. Rule 12(b)(6) Standard for Motion to Dismiss

Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of plaintiff's claims for relief, not to resolvecontested facts or rule upon the merits of the case. See Klusty v. Taco Bell Corp., 909 F. Supp. 516, 519 (S.D. Ohio 1995). To avoid dismissal for failure to state a claim for relief, the 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). While the plaintiff need not plead specific facts, her statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197 (2007) (internal quotation marks and citations omitted).

"When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff." Gadberry v. Bethesda, 608 F. Supp.2d 916, 918 (S.D. Ohio 2009). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955 (2007), the Supreme Court explained that, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id., 127 S.Ct. at 1969. At its outset, however, a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965; accord Ashcraft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1950 (2009); see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (courts "are not bound to accept as true a legal conclusion couched as a factual allegation"); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998) ("court need not accept as true legal conclusions or unwarranted factual inferences"). Thus, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 127 S.Ct. at 1965 (citations omitted). While a complaint need not contain "heightened fact pleading of specifics," it must provide "enough facts to state a claim to relief that is plausible on its face" to survivea motion to dismiss. Id. at 1974. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.

Plaintiff filed her complaint pro se. Such pleadings ordinarily are construed more liberally than those drafted by attorneys. Erickson v. Pardus, 127 S. Ct. at 2200 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Because Plaintiff admits that the complaint was drafted by her attorney in another matter, however, the complaint is not entitled to the same degree of liberal construction afforded to most pro se pleadings. In addition, no matter how liberally a pleading is construed, the Court will neither "conjure up unpled allegations...nor create a claim for Plaintiff." Rogers v. Detroit Police Dept., 595 F.Supp.2d 757, 766 (E.D. Mich. 2009) (internal quotation marks and additional citations omitted).

B. Alternative Standard of Review for Summary Judgment

With rare exceptions, the standard of review applicable to a motion to dismiss generally constrains this Court's review to the pleadings and any exhibits attached thereto. Nevertheless, Defendants Jackson Lewis and Attorney Byrne have attached to their motion several exhibits, including an affidavit by Attorney Byrne, and correspondence between attorneys at Jackson Lewis and Plaintiff, which relate to Count VIII of Plaintiff's complaint. (Doc. 17-1). The motion of First Data, Frank Bisignano and Robin Ording, and the motion of Saul Ewing Arnstein & Lehr, LLP ("SEAL") and Cooper, both refer to a separate affidavit of a court reporter who recorded Plaintiff's deposition in another case. (Doc. 20). Acknowledging the limitations of this Court's scope of review under Rule 12, Defendants explain that they are alternatively moving for summary judgment solely as to Plaintiff's claim for eavesdropping/invasion of privacy (Count VIII).

In her opposition to dismissal, Plaintiff urges this Court not to consider matters outside the pleadings.² For the reasons discussed below, the undersigned finds the motion to dismiss to be well-founded on all counts (including Count VIII) without consideration of evidentiary exhibits. Should any reviewing court disagree, the undersigned alternatively recommends that summary judgment be granted to all Defendants with respect to Count VIII, on the basis of the court reporter's affidavit and the additional affidavit exhibits submitted by Defendants Jackson Lewis and Byrne.

In a motion for 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 making credibility determinations are prohibited at summary judgment-rather, all facts must be viewed in the light most favorable to the non-moving party." Id.

The requirement that facts be construed in the light most favorable to the Plaintiff does not mean that the court must find a factual dispute where record evidence contradicts Plaintiff's unsupported allegations. After a moving party has carried its initial burden of showing that no genuine issues of material fact remain in dispute, the burdenshifts to the non-moving party to present specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, (1986). "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The non-moving party's evidence "is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52. To demonstrate a genuine issue of fact, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

II. Background and Allegations of Complaint

Plaintiff's complaint spans 47-pages and ¶354 paragraphs and includes an additional 188 pages of exhibits. The complaint also explicitly incorporates all records filed in Case No. 1:18-mc-00010. (Complaint at ¶¶199-200). In light of those factors, Plaintiff's complaint cannot be described as a "short and plain statement" of her claims in compliance with Rule 8. Nevertheless, the undersigned considers the totality of the complaint and its exhibits for purposes of the pending motions to dismiss.

Plaintiff began her employment with First Data in 1998. She began working remotely from her home office in Ohio, long before the onset of any alleged disability, in April 2005. (Complaint at ¶¶38, 39, 44). Plaintiff continued to work for First Data untilNovember 30, 2017.

On December 12, 2012, Plaintiff gave birth to twins. Following that event, she experienced significant post-partum medical issues, both physical and mental. Plaintiff sought treatment, but does not allege that she requested or required any accommodations from her employer. To the contrary, she alleges that she returned to work in March 2013 without any change to her position or responsibilities. However, she has continued to receive medical treatment for the same conditions through the present time. (Id. at ¶¶ 46-51).

From August 2014 until November 2016, Plaintiff's direct supervisor was Steven Barger ("Barger"). While still under Barger's supervision, Plaintiff became pregnant again and was advised not to travel by her physician in October 2014. She requested a "no travel" work-from-home accommodation, which was approved by Barger. (Id. at ¶65; see also Doc. 1-2 at 22, document reflecting approval of limitations "through the duration of high-risk pregnancy).

In January 2015, while Plaintiff was still pregnant, the new...