The opinion of the court was delivered by: Magistrate Judge Timothy S. Black
MEMORANDUM OPINION AND ORDER
This is a civil action brought by plaintiff Mark Apseloff ("plaintiff") against his former employer, Family Dollar Stores, Inc. ("defendant" or "Family Dollar"). Plaintiff claims that the defendant terminated plaintiff's employment in unlawful retaliation for his having voiced his opposition to defendant's allegedly gender-based discriminatory personnel policies, which policies violate Ohio's anti-discrimination statute, Ohio Revised Code §§ 4112. 01, et seq., according to plaintiff. (See doc. 2 at p. 3). Plaintiff further alleges that defendant's unlawfully retaliatory conduct in terminating his employment also violates Ohio's public policy. (Id.) Although plaintiff filed his complaint in the Hamilton County Court of Common Pleas, on March 13, 2006, defendant removed the case to this Court and filed a motion to dismiss based on res judicata. (Doc. 3).
A review of the record reflects that the following material facts are not disputed:
* Plaintiff was hired by defendant as District Manager in July 2001.
* Plaintiff's employment was terminated by defendant nine months later in late February 2002.
* Plaintiff first filed a charge of discrimination against defendant with the Equal Employment Opportunity Commission on April 11, 2002.
* On August 26, 2006, plaintiff filed a first civil action against defendant in Hamilton County Municipal Court, Small Claims Division, alleging that upon termination, defendant unlawfully failed to pay plaintiff "stock options" that allegedly were part of plaintiff's hiring agreement with defendant. After trial on the merits, the Municipal Court ruled against plaintiff on January 30, 2003, finding that plaintiff was not entitled to any amount of money for "stock options" upon the termination of his employment. (See doc. 3 at Ex. D).
* Less than one month later, plaintiff filed another civil action against defendant in Hamilton County Municipal Court, Small Claims Division, alleging that upon termination, defendant unlawfully failed to pay plaintiff "vacation pay" due to him upon the termination of his employment. Promptly thereafter, defendant filed a motion to dismiss the action based on res judicata. (Doc. 3 at Ex. F at p. 2). On May 21, 2003, the Municipal Court granted defendant's motion to dismiss based on res judicata. (Id.)
B. Res Judicata and Rule 12(b)(6) of the Federal Rules of Civil Procedure
Plaintiff argues that defendant cannot raise the affirmative defense of res judicata in a Rule 12(b)(6) motion to dismiss, citing Ohio state law and Rule 12(B)(6) of the Ohio Rules of Civil Procedure. The case law under the Federal Rules of Civil Procedure is entirely contrary, however. See DeNune v. Consolidated Capital of North America, Inc., 288 F.Supp.2d 844 (N.D. Ohio 2003);*fn1 see also Logan Farms v. HBH, Inc., 282 F.Supp.2d 776, 786 (S.D. Ohio 2003);*fn2 see also Daubenmire v. City of Columbus, 2006 U.S. Dist. LEXIS 7661 at *17-*18.*fn3 Accordingly, defendant is entitled to raise the res judicata issue in this motion to dismiss.
Nonetheless, in considering the motion to dismiss based on res judicata, the Court must take all material allegations in the complaint as true, and construe them in the light most favorable to plaintiff, the non-moving party. See Scheuer v. Rhodes, 416 U.S. 232, 235-37 ...