The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge
Lisa Rainer, a former employee of defendant Refco, filed suit against Refco alleging that the termination of her employment on February 17, 2005 constituted actionable discrimination. Andrew Gilliland, Lisa Rainer's son and a part-time Refco employee, had his employment terminated on the same date. He filed the second of these now-consolidated actions asserting that his employment was terminated in retaliation for his mother's stance on sex discrimination in the workplace. With the consent of the parties, both cases have been referred to the undersigned for final disposition pursuant to 28 U.S.C. §636(c).
On September 14, 2006, Refco moved under Fed. R. Civ. P. 12(b)(6) to dismiss Mr. Gilliland's claim. Responsive and reply memoranda have been filed, and the motion is now ripe for decision. For the following reasons, the motion to dismiss will be granted, and the Clerk will be directed to enter a judgment terminating Case No. 2:06-cv-351.
When considering a motion to dismiss pursuant to Fed. R. Civ. P. l2(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Scheuer v. Rhodes, 4l6 U.S. 232, 236 (l974); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. l983). When determining the sufficiency of a complaint in the face of a motion to dismiss, the court must apply the principle that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 4l, 45-46 (l957). See also, McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (l980); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983), cert. denied, 469 U.S. 826 (1984).
A motion to dismiss under Rule 12(b)(6) is directed solely to the complaint itself. Roth Steel Products, 705 F.2d at 155. Consequently, the Court must focus on whether the claimant is entitled to offer evidence to support the claims, rather than whether the plaintiff will ultimately prevail. Scheuer, 4l6 U.S. at 236. A federal court cannot consider extrinsic evidence in determining whether a complaint states a claim upon which relief can be granted. Roth Steel Products, 705 F.2d at 155. The Court will grant a defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(6) if the complaint is without merit because of an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See generally Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. l978).
The facts alleged in the complaint can easily be summarized. Mr. Gilliland and his mother both worked for Refco. They were employed at its plant in Jackson County, Ohio. While employed by Refco, Lisa Rainer, Mr. Gilliland's mother, opposed what she believed to be unlawful sex discrimination in employment at the Refco facility. Allegedly, in retaliation for that conduct, Refco terminated both Mr. Gilliland's and Ms. Rainer's employment on the same day, February 17, 2005. Mr. Gilliland does not claim that he engaged in any specific activity concerning allegedly unlawful employment practices. Rather, he asserts that "defendants discriminated against him, terminated [his employment]...because [his mother] has opposed what she believed to be unlawful sex discrimination in employment and he [Mr. Gilliland] was Rainer's son." Complaint, ¶17.
Mr. Gilliland's complaint pleads four legal theories. He asserts that the termination of his employment is actionable retaliation under Title VII of the Civil Rights Act of 1964, as amended, and O.R.C. §4112.02(I). He also alleges that the two individual defendants are liable for aiding and abetting employment discrimination and that he was discharged in violation of the public policy of Ohio. The motion to dismiss raises a single legal issue: whether an individual who has not engaged in activity protected by either Title VII or state employment discrimination laws may claim unlawful retaliation if that person's employment was terminated as a result of protected activity engaged in by another person with whom the discharged plaintiff has some type of relationship (such as, in this case, a family relationship). For the following reasons, the Court answers that question in the negative.
Not surprisingly, the issue presented by Mr. Gilliland's complaint has been discussed by a number of other courts in the years since Title VII was adopted. There are decisions which favor his position and decisions which favor Refco's position. In analyzing this issue, the Court must answer the following three questions. First, it must determine whether the outcome of this case is controlled by decisions from the Court of Appeals for the Sixth Circuit. If not, the Court must determine on which side of the issue the weight of existing authority lies. Finally, the Court must determine which of the conflicting decisions are the more persuasive. The Court addresses each of these questions in turn.
The primary statutory provision at issue in this case, 42 U.S.C. §2000e-3(a), makes it unlawful for an employer to discriminate against any employee or applicant for employment "because [the employee or applicant] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee or applicant] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." On its face, this provision appears to be confined to direct retaliation against an employee who has himself engaged in protected activity under Title VII. However, Mr. Gilliland argues that it was construed broadly by the Court of Appeals for the Sixth Circuit in EEOC v. Ohio Edison Co., 7 F.3d 541 (1993), and under that broad construction, his claim is cognizable. If, as he contends, the Court of Appeals has decided this issue, there is no leeway for this Court to adopt a different interpretation of the statute. However, the Court is not persuaded that the Ohio Edison decision addresses the precise issue raised by Mr. Gilliland's complaint.
In Ohio Edison, the EEOC filed suit on behalf of a discharged employee, Johnnie Whitfield. Shortly thereafter, he received an offer of reinstatement. However, after a different employee protested Mr. Whitfield's initial discharge, Ohio Edison rescinded the offer of restatement. Mr. Whitfield contended that he was not rehired in retaliation for the other employee's protest of Ohio Edison's unlawful employment practices. Agreeing with Ohio Edison that these facts, even if true, did not state a ...