Kovac v. Superior Dairy, Inc.

930 F.Supp.2d 857

Terry KOVAC, Plaintiff,

v.SUPERIOR DAIRY, INC., Defendant.

Case No. 5:12–CV–01467.

United States District Court,

N.D. Ohio,

Eastern Division.

March 12, 2013.

Amanda M. Paar, David L. Dingwell, Elizabeth A. Raies, Tzangas, Plakas, Mannos & Recupero, Canton, OH, for Plaintiff.

Keith L. Pryatel, Jaime U. Kolligian, Kastner, Westman & Wilkins, Akron, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

Before the Court is what was originally brought solely as a motion to dismiss by defendant Superior Dairy, Inc. (“defendant” or “Superior”) pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 4.) Plaintiff Terry Kovac (“plaintiff” or “Kovac”) has filed a memorandum in opposition (ECF No. 7), and Superior has filed a reply (ECF No. 8). In order to dispose of an issue raised in the briefing regarding whether plaintiff's claims are subject to mandatory arbitration, the Court converted the motion to dismiss on that particular issue into a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Accordingly, the Court invited the parties to file supplemental briefing on the arbitration issue, and the parties did so. (ECF Nos. 10–12.) The parties also filed a joint stipulation pertaining to the arbitration issue. (ECF No. 9.) The matter is ripe for determination. For the reasons that follow, defendant's motion for summary judgment is DENIED, and defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

The following background information is alleged by Kovac. At some time prior to the events underlying this case, Kovac was in an accident that left one of his legs “severely mangled.” (ECF No. 1–3 at ¶ 4.) On June 12, 2006, Superior hired Kovac through the Bureau of Vocational Rehabilitation as a “lot trailer transporter,” which entailed driving a “Yard Tractor.” (ECF No. 1–3 at ¶ 6; ECF No. 4–2 at 46.) ¹ On April 27, 2007, Kovac submitted permanent job and time restrictions, determined by a physician, to Superior. (ECF No. 1–3 at ¶ 7; ECF No. 4–2 at 46.) Pursuant to these restrictions, Superior and Kovac jointly determined that Kovac could perform all but two of Superior's third-shift positions: “line lift operator” and “leak check.” (ECF No. 1–3 at ¶¶ 8–9.)

Kovac worked under these restrictions until September 2009, when Superior underwent a change of management. (ECF No. 1–3 at ¶ 10.) Soon after, Superior scheduled Kovac to work outside his permanent time restrictions. (ECF No. 1–3 at ¶ 11.) Kovac notified Superior, and the issue was resolved. (ECF No. 4–2 at 47.) In November 2009, Kovac was “forced” by Superior to take twelve weeks of sick leave in order to be examined by a doctor that Superior hired to re-examine Kovac's restrictions and medication. (ECF No. 1–3 at ¶ 13.) Kovac was required to provide all of his personal medical records to Superior as part of this evaluation. (ECF No. 1–3 at ¶ 14.)

The examining physician upheld Kovac's restrictions, and Kovac returned to work at Superior on March 1, 2010. (ECF No. 1–3 at ¶¶ 15–16.) Upon his return, however, Kovac was assigned the position of line lift operator, one of the two positions outside his job restrictions. (ECF No. 1–3 at ¶ 16.) He informed his supervisor, but was threatened with termination if he did not perform the job. (ECF No. 4–2 at 47.) Subsequently, Kovac worked as a line lift operator for several days, experiencing “severe issues with his leg,” at which point he was moved to a position within his restrictions. (ECF No. 1–3 at ¶ 17.)

On December 14, 2010, Superior once again assigned Kovac to a job outside his job restrictions, the leak check position, this time on a permanent basis. (ECF No. 4–2 at 47.) At the time, Kovac was senior to all but one member of the third shift, and there were three other jobs on the shift that Kovac could have performed pursuant to his medical restrictions. (ECF No. 4–2 at 47.) Upon informing Superior that he would need to consult with his doctor before performing a job outside of his restrictions, Kovac was sent home. (ECF No. 4–2 at 47.) On December 16, 2010, Kovac filed a grievance with his union under Article IX of the union's collective bargaining agreement (the “CBA”), seeking reinstatement to the “loader” position until his doctor could review his ability to perform the leak check position. (ECF No. 9 at 167, 171.) That same day, Superior terminated Kovac for “insubordination” for refusing to work the leak check position. (ECF No. 4–2 at 47.) On December 17, 2010, Kovac filed a second grievance with the union, this time alleging “discharge without just cause.” (ECF No. 9 at 172.) The union decided not to pursue either of Kovac's grievances to arbitration under Article X of the CBA. (ECF No. 9 at 167.)

On April 11, 2011, Kovac filed a dual charge with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”), asserting disability discrimination and retaliation. (ECF No. 4–2 at 46.) The OCRC investigated Kovac's allegations, ruling in a letter of determination issued September 29, 2011, that there was no probable cause to believe Superior had discriminated against Kovac and recommending that the matter be dismissed. (ECF No. 4–2 at 53.) Kovac applied for reconsideration of the OCRC's decision, and on January 12, 2012, the OCRC upheld its determination of no probable cause and ordered dismissal, finding that Kovac was indeed fired for insubordination, which was “a legitimate, non-discriminatory” ground for termination. (ECF No. 4–2 at 53.) Kovac exercised his right to request review of the OCRC's findings from the EEOC, and the EEOC adopted the OCRC's findings, sending Kovac a notice of dismissal and right-to-sue letter on February 24, 2012. (ECF No. 4–2 at 59.)

On May 29, 2012, Kovac brought the present action in the Stark County Court of Common Pleas, alleging disability discrimination by Superior in violation of the Americans with Disabilities Act (“ADA”) and Ohio Rev.Code § 4112.02, as well as intentional infliction of emotional distress. (ECF No. 1–3 Ex. B.) On June 11, 2012, Superior removed the action to this Court (ECF No. 1 at 1) pursuant to 28 U.S.C. §§ 1331 and 1441 and filed the subject motion to dismiss Kovac's complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 4 at 20).

II. STANDARD AND SCOPE OF REVIEW

A. Documents outside the Pleadings

Superior makes four separate arguments in its dispositive motion: (1) Kovac's federal discrimination claim is time-barred; (2) Kovac failed to timely appeal his adverse OCRC determination; (3) Kovac's negligent and/or intentional infliction of emotional distress claim fails to state a claim for which relief can be granted; ² and (4) Kovac consented to arbitration of all his claims.

In briefing this motion, defendant has included exhibits, and both parties have submitted affidavits. Ordinarily, such “[m]atters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss,” Weiner v. Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir.1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989)), and a court that considers such matters must first convert the motion to dismiss to one for summary judgment, Fed.R.Civ.P. 12(d). However, “[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the] defendant's motion to dismiss, so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008). EEOC charges and related documents, including right to sue letters, are public records of which the Court may take judicial notice in ruling on a motion to dismiss without having to convert the motion into one for summary judgment. Williams v. Steak 'N Shake, No. 5:11CV833, 2011 WL 3627165, at *3 (N.D.Ohio Aug. 17, 2011). OCRC records are similarly public records that may be judicially noticed. Bass v. Wendy's of Downtown, Inc., No. 11–CV–940, 2012 WL 1552264, at *2 n. 1 (N.D.Ohio May 1, 2012); Felix v. Dow Chem. Co., No. 2:07–CV–971, 2008 WL 207857, at *2 (S.D.Ohio Jan. 23, 2008).

Exhibits A–D of Superior's motion to dismiss consist of OCRC and EEOC documents that are part of the public record. Accordingly, the Court may consider these exhibits without converting the motion to dismiss to a motion for summary judgment.

In contrast, Kovac's affidavit, attached to his opposition to Superior's motion to dismiss, may not be considered by the court in ruling on a 12(b)(6) motion. Because the affidavit is not essential to the Court's ruling on defendant's motion, the Court will not consider it. Likewise, the Court will not consider the affidavit from Superior's Human Resources Manager attached to Superior's motion.³

Similarly, Exhibit E, the CBA between Superior and its employees' union, is not public record and is not mentioned in Kovac's complaint. As a result, for the Court to consider the CBA, it must convert the motion to dismiss into a motion for summary judgment. However, the CBA is only relevant to one of the four arguments raised in defendant's motion: that Kovac consented to arbitration of all his claims. The Court can rule on the other three arguments—that Kovac's federal discrimination claim is time-barred, that Kovac failed to timely appeal his adverse OCRC determination, and that Kovac's negligent and/or intentional infliction of emotional distress claim fails to state a claim—without referencing the CBA. For that reason, the Court only converts defendant's motion to dismiss to a motion for summary judgment on the arbitration issue and only considers Exhibit E, the CBA, for the same. The parties were given notice of the conversion and filed supplemental briefing on only that issue.

B. Motion for Summary Judgment

Under Fed.R.Civ.P. 56(a), when a motion for summary judgment...