The opinion of the court was delivered by: Judge Algenon L. Marbley
Magistrate Judge Norah McCann King
This matter is before the Court on Defendant's Motion to Dismiss Counts I and II of Plaintiff's Complaint and Motion for More Definite Statement of Count III. (Doc. 6). For the reasons that follow, the Motion to Dismiss Count I is GRANTED, the Motion to Dismiss Count II is DENIED, and the Motion for a More Definite Statement of Count III is GRANTED.
Defendant Amsted Rail Company, Inc. employed Plaintiff David Legg from January 31, 2007, until March 29, 2011. From late 2010 until his termination, Plaintiff repeatedly spoke out against Defendant's plan to change its seniority policy in a way that Plaintiff perceived as discriminatory to the company's "more senior employees." On March 20, 2011, Plaintiff complained to Defendant about unsafe work practices of contractors at a worksite. Later that day, Plaintiff was involved in a workplace accident that caused injury to a contractor. Defendant suspended Plaintiff pending an investigation, and then fired him on March 29, 2011, for engaging in reckless behavior and injuring an individual. Plaintiff alleges that he was not terminated for causing the workplace accident, but was terminated in retaliation for speaking out against Defendant's discriminatory conduct and unsafe work practices.
Plaintiff filed suit against Defendant in the Franklin County Court of Common Pleas on May 24, 2011. (Doc. 3). Defendant filed Notice of Removal to this Court on June 24, 2011. (Doc. 1).Plaintiff brings the following claims: (1) that Defendant terminated his employment in violation of employees' right to protected concerted activity pursuant to §§ 7 and 8 of the National Labor Relations Act ("NLRA"), 29 USCA §151 et seq.; (2) that Defendant terminated his employment in retaliation for Plaintiff's complaints against discrimination in violation of Ohio Revised Code § 4112.02 and § 4112.99; and (3) that Defendant terminated his employment in retaliation for Plaintiff's complaints against discrimination in violation of Ohio public policy, including but not limited to Ohio Revised Code § 4112. As relief, Plaintiff requests back pay and benefits, reinstatement with reasonable accommodations or front pay and benefits, pre-judgment interest, post-judgment interest, compensatory damages, punitive damages, liquidated damages, attorneys' fees, expert witness's fees and the costs of this action.
Defendant filed its motion to dismiss on July 1, 2011. (Doc. 6). Defendant contends that this Court does not have jurisdiction to hear Plaintiff's First Claim for termination in violation of the NLRA. Defendant further contends that Plaintiff's Second Claim for retaliatory termination in violation of Ohio Revised Code § 4112 fails to state a claim upon which relief may be granted because Plaintiff has failed to allege that he was retaliated against on a statutorily protected basis. Defendant finally contends that Plaintiff's Third Claim for retaliatory termination in violation of Ohio public policy, including but not limited to Ohio Revised Code § 4112, lacks sufficient specificity to provide adequate notice. The Motion has been fully briefed and is now ripe for decision.
A. Lack of Subject Matter Jurisdiction
When a defendant raises the issue of lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). "[M]otions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack challenges the sufficiency of a complaint, and, when considering the motion, the court must view the material allegations in the complaint as true and construe them in the light most favorable to the nonmoving party. Id. A factual attack is a challenge to the factual existence of subject matter jurisdiction. Id. In a factual attack "the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits." Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003). As Defendant's Motion to Dismiss argues that Plaintiff's claim of wrongful termination in violation of the NLRA would fall under the National Labor Relations Board's jurisdiction, the Court will treat Defendant's Motion as a facial attack.
B. Failure to State a Claim Upon Which Relief Can Be Granted
Rule 12(b)(6) permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). 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). The plaintiff's ground for relief must entail more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Although a plaintiff need not plead specific facts, the complaint must '"give the defendant fair notice of what the claim is, and the grounds upon which it rests.'" Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). "To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Klusty v. Taco Bell Corp., 909 F. Supp. 516, 520 (S.D. Ohio 1995) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). Additionally, the Court must accept as true all factual allegations contained in the complaint, and the ...