United States District Court, S.D. Ohio, Eastern Division
DEAVERS MAGISTRATE JUDGE.
OPINION AND ORDER
C. SMITH, JUDGE.
matter is before the Court upon Defendant Nationwide Mutual
Insurance Company's Motion to Dismiss under Rule 12(b)(6)
for failure to state claim upon which relief can be granted
(“Motion to Dismiss”) (Doc. 6). The motion is
fully briefed and ripe for disposition. For the following
reasons, Nationwide's Motion to Dismiss is
David Andrew Rodenbeck was a contractor on assignment at
Nationwide from September 2016 through October 2017. (Doc. 1,
Compl. at 4). Plaintiff alleges that he has a disability that
can “affect [his work] performance.”
(Id. at 5). According to Plaintiff, Nationwide
failed to make accommodations for his disability as required
by the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq. (the “ADA”) (Id.
filed this action against Nationwide on October 11, 2017. The
following day, he filed a timely charge of discrimination
with the Ohio Civil Rights Commission (the
“OCRC”). (Doc. 9, Charge of Discrimination). That
charge remains pending before the OCRC.
November 7, 2017, Nationwide filed this Motion to Dismiss
under Rule 12(b)(6) arguing Plaintiff failed to exhaust his
administrative remedies before filing suit as required by 42
U.S.C. §§ 12117 and § 2000e-5(e). (Doc. 6,
Mot. to Dismiss). Plaintiff's Memorandum in Opposition
states only that Plaintiff filed a timely charge with the
OCRC, but does not dispute that he has not received a
right-to-sue letter. (Doc. 9, Mem. in Opp. at 1).
STANDARD FOR DISMISSAL UNDER RULE 12(b)(6)
brings this motion pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, alleging that Plaintiff has failed
to state a claim upon which relief can be granted.
the Federal Rules, any pleading that states a claim for
relief must contain a “short and plain statement of the
claim” showing that the pleader is entitled to such
relief. Fed.R.Civ.P. 8(a)(2). To meet this standard, a party
must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a
plaintiff sets forth “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
12(b)(6) allows parties to challenge the sufficiency of a
complaint under the foregoing standards. In considering
whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint
in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Ohio Police & Fire
Pension Fund v. Standard & Poor's Fin. Servs.
LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, “the tenet that a court must accept a
complaint's allegations as true is inapplicable to
threadbare recitals of a cause of action's elements,
supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to
afford plaintiff every inference, the pleading must still
contain facts sufficient to “provide a plausible basis
for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct”
will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of
Mich., Inc., 491 Fed.Appx. 628, 632 (6th Cir. 2012);
Iqbal, 556 U.S. at 679.
well-settled that before bringing an ADA claim in this Court,
a plaintiff must first exhaust his administrative remedies.
42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5; see
also Parry v. Mohawk Motors of Mich., Inc., 236 F.3d
299, 309 (6th Cir. 2000); Marcum v. Oscar Mayer Foods
Corp., 46 Fed.Appx. 331, 333 (6th Cir. 2002) (“The
exhaustion of administrative remedies is a condition
precedent to an ADA action.”). To exhaust
administrative remedies for an ADA claim, a plaintiff must
first timely file a charge of disability discrimination with
the Equal Opportunity Employment Commission and/or the OCRC.
42 U.S.C. § 2000e-5(e); Williams v. Northwest
Airlines, 53 Fed.Appx. 350, 352 (6th Cir. 2002). Only
after the administrative body dismisses the charge and issues
a right-to-sue letter can a plaintiff then file a civil
action. Id. at 352, citing 42 U.S.C. §
2000e-5(f)(1). When a plaintiff “files suit prior to
receiving a right to sue letter, the district court is
compelled to dismiss the premature action for failure to
exhaust administrative remedies.” Mitchell v.
Chapman, 343 F.3d 811, 821 n.10 (6th Cir. 2003).
the precise situation now before the Court. Plaintiff has
filed a charge of discrimination with the OCRC, but the OCRC
has not yet completed its investigation of Plaintiff's
charge and therefore has not yet issued a right-to-sue
letter. For this reason, Plaintiff did not and is unable to
allege in his Complaint that he has exhausted his
administrative remedies before filing suit as required by the
ADA. This action is therefore premature and must be
dismissed. However, Plaintiff may “return ...