The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court upon Defendant LabOne of Ohio, Inc.'s ("LabOne") Motion for Judgment on the Pleadings. (Doc. 18) Plaintiff has filed a Response in Opposition (Doc. 20), and Defendant LabOne filed a Reply (Doc. 21). Plaintiff then filed a Supplemental Memorandum in Opposition. (Doc. 28) Defendant Health Alliance also filed a Motion for Judgment on the Pleadings (Doc. 31), which Plaintiff opposes (Doc. 32). Also related to this matter is Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. 29), which is unopposed. This matter is now ripe for review.
Plaintiff Melita Skelton was employed as a histotechnologist by Health Alliance starting in May 1998. (Amended Complaint, Doc. 7 at ¶ 11) She was continuously employed by Health Alliance through January 2, 2004. (Id. at ¶ 12) In November 2003, Plaintiff began to take leave from work due to complications with her pregnancy. (Id. at ¶ 13) Health Alliance knew that Plaintiff was on leave pursuant to the Family Medical Leave Act (FMLA). (Id. at ¶¶ 14, 16)
On December 30, 2003, Health Alliance entered into a purchase agreement with LabOne that provided that LabOne would retain those employees actively at work and who returned to work within thirty days of the January 3, 2004 closing date. (Id. at ¶ 15) Plaintiff informed Health Alliance that she was unable to return to work until March 26, 2004. (Id. at ¶ 14; Doc. 18, Ex. A) Health Alliance told Plaintiff that she could only return in her prior position if LabOne decided to employ her. (Id. at ¶ 18) LabOne refused to hire Plaintiff, stating that LabOne was not required to hire her under the 30-day provision in the purchase agreement. (Id. at ¶ 19) When Plaintiff attempted to find work in a comparable position at Health Alliance, she was unable to find one. All the positions Health Alliance offered were either dissimilar or paid less than what she made prior to her leave. (Id. at ¶ 20)
As of the filing of the first Amended Complaint, Plaintiff had not been issued a notice of right to sue against LabOne by the EEOC.*fn1 The EEOC issued a notice of right to sue against LabOne on September 23, 2005. (Doc. 28, Ex. B). Plaintiff moved for leave to file her Second Amended Complaint on October 27, 2005. (Doc. 29)
Plaintiff brings claims of sex and pregnancy discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; conspiracy; retaliation and interference under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq.; violation of Ohio public policy; and violations of Ohio anti-discrimination law. Plaintiff also makes reference to the Americans with Disabilities Act, 42 U.S.C. § 12132.
1. Motion for Leave to File Second Amended Complaint
Federal Rule of Civil Procedure 15(a) provides:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
In Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court explained that a motion to amend generally should be granted:
In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given."
Plaintiff states that the EEOC did not issue a notice of right to sue LabOne until September 23, 2005, or eight months after the Amended Complaint was filed. Paragraph 10 of the Amended Complaint specifically stated that Plaintiff intended to amend her complaint as soon as the EEOC issued a notice of right to sue. Plaintiff moved for leave to file a second amended complaint on October 27, 2005, one month after the EEOC issued the notice. Therefore, the Court cannot find undue delay, bad faith, or dilatory motive on the part of Plaintiff. Defendants have not articulated any undue prejudice which they ...