United States District Court, S.D. Ohio, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
TIMOTHY S. BLACK, UNITED STATES DISTRICT JUDGE
civil action is before the Court on the (second) motion for
partial judgment on the pleadings of Defendants U.S. Bank
National Association (“U.S. Bank”) and Alesia
Douglas (Doc. 16) and the parties' responsive memoranda
(Docs. 17-1, 18-1), as well as Plaintiff's motion for
leave to respond, instanter, to Defendants'
motion (Doc. 17) and the parties' responsive memoranda
(Docs. 18, 19).
Jeannette Conrad brings this action against Defendants for
age discrimination and retaliation under the Family and
Medical Leave Act of 1993 (“FMLA”) 29 U.S.C.
§ 2601, et seq., and Ohio state law. Conrad was
employed by Defendant U.S. Bank as a Senior Compliance
Officer from July 2014 until she was terminated on or about
July 29, 2017. (Doc. 1 ¶ 16). Defendant Douglas was
Conrad's supervisor at U.S. Bank. During the relevant
time period, Plaintiff was 44 years old. (Id. ¶
alleges that she was subjected to scrutiny and harassment
based on her age by her supervisors, primarily Douglas.
(Id. ¶ 23). Conrad expressed a desire to
transfer after being placed under Douglas, but was then
placed on a performance improvement plan (“PIP”)
on or around March 2017 by Douglas. (Id.
¶¶ 20, 25). Conrad states she was placed on a PIP
even though she was an above-average performer and had no
attendance issues. (Id. ¶ 25). Conrad was
blocked from applying for a transfer because she was placed
on the PIP. (Id. ¶ 21).
alleges that Douglas extended the PIP because Conrad took an
approved disability leave under the FMLA. (Id.
¶ 27). Conrad states that she submitted complaints about
Douglas' alleged discrimination and harassment to human
resources and Douglas' manager before and after being
placed on the PIP. (Id. ¶¶ 31-32). Conrad
alleges that she was retaliated against for making complaints
and was ultimately terminated in July 2017. (Id.
later applied for unemployment benefits, which U.S. Bank
opposed. The Unemployment Commission found that U.S. Bank did
not have just cause in its termination of Conrad.
(Id. ¶ 41). Conrad alleges she was in fact
terminated due to her age and/or in retaliation for making
complaints of discrimination and harassment in the workplace.
(Id. ¶ 42). Conrad alleges that she has
suffered severe emotional distress, anxiety, and depression.
(Id. ¶ 43).
filed the initial complaint on November 6, 2018 asserting the
following five claims: (1) age discrimination in violation of
Ohio Revised Code (“R.C.”) §§ 4112.02
and 4112.99; (2) wrongful termination based on age
discrimination; (3) retaliation in violation of R.C. §
4112.02(I); (4) retaliation in violation of the FMLA; and (5)
intentional infliction of emotional distress. (Doc. 1
¶¶ 44-80). On December 18, 2018, Defendants filed a
motion for judgment on the pleadings asserting that
Plaintiff's state-law claims-Counts I, II, III, and
V-should be dismissed. (Doc. 11 at 2). In particular,
Defendants argued that Counts I and III are barred by the
180-day statute of limitations set forth in R.C. §
4112.02(L). (Id. at 3). Subsequently, Conrad filed
an amended complaint, without seeking leave of court, to
address the issues raised in Defendants' first motion for
partial judgment on the pleadings. (Doc. 12). In the amended
complaint, Plaintiff reasserts the same five grounds, but
changes the statutory basis for her state-law age
discrimination claim. Accordingly, the amended complaint
asserts the following five counts: (1) age discrimination in
violation of R.C. §§ 4112.14 and 4112.99; (2)
wrongful termination based on age discrimination; (3)
retaliation in violation of R.C. § 4112.02(I); (4)
retaliation in violation of the FMLA; and (5) intentional
infliction of emotional distress. (Id. ¶¶
then filed a second motion for partial judgment on the
pleadings reasserting that Counts I, II, III, and V should be
dismissed and arguing that Plaintiff should not be permitted
to amend her complaint. (Doc. 16). Conrad did not timely
respond to Defendants' motion for partial judgment on the
pleadings. One week after the deadline to file a response,
Conrad filed a motion for leave to respond,
instanter, to the Defendants' motion. (Doc. 17).
Conrad's motion attached the proposed response to
Defendants' second motion for judgment on the pleadings.
(Doc. 17-1). Defendants opposed Conrad's motion for leave
to respond (Doc. 18) and attached a reply in further support
of the motion for partial judgment on the pleadings. (Doc.
18-1). The pending motions are ripe for review.
MOTION FOR LEAVE TO RESPOND
analyzing the motion for partial judgment on the pleadings,
the Court must determine whether it will consider
Plaintiff's untimely response in opposition to the
to Local Rule 7.2(a)(2), Plaintiff's response brief
should have been filed on February 5, 2019. However,
“due to excusable neglect on [Plaintiff's]
counsel's part, counsel inadvertently calendared the
wrong date for his response.” (Doc. 17 at 1). Plaintiff
filed the motion to file a response to Defendants' motion
for partial judgment on the pleadings out of time, including
her response, on February 12, 2019-one week after the
deadline under the Local Rules.
Rule of Civil Procedure 6 provides that a court may, for good
cause, extend the time to file a “motion made after the
time has expired if the party failed to act because of
excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). The Sixth
Circuit has described the standard, commonly referred to as
the “Pioneer factors, ” for determining
whether counsel's neglect is excusable:
[T]he governing legal standard for excusable-neglect
determinations is a balancing of five principal factors: (1)
the danger of prejudice to the nonmoving party, (2) the
length of the delay and its potential impact on judicial
proceedings, (3) the reason for the delay, (4) whether the
delay was within the reasonable control of the moving party,
and (5) whether the late filing party acted in good faith.
Nafziger v. McDermott Int'l, Inc., 467 F.3d 514,
522 (6th Cir. 2006) (citing Pioneer Inv. Servs. Co. v.
Brunswick Assoc., Ltd. P'ship, 507 U.S. 380, 395
(1993)). Excusable neglect is an equitable concept that
considers “all relevant circumstances”
surrounding the failure to act. Pioneer, 507 U.S. at
395. As a general rule, “excusable neglect” does
not require that counsel have been faultless, and
“inadvertence, mistake, or carelessness” can fall
within the rule. Id. at 388. It is clear that
incorrectly calendaring a response date constitutes neglect,
so the Court must determine if that neglect is excusable by
applying the Pioneer factors.
first factor weighs in favor of Plaintiff because Defendants
are not prejudiced by Plaintiff's late
response-Defendants do not even argue that they are
prejudiced. The second factor also weighs in favor of
Plaintiff because the late response was filed only seven days
after the deadline and in no way has impacted this judicial
proceeding. The third Pioneer factor weighs slightly
against Plaintiff because her only reason for the delay was a
calendaring error. Defendants cite to several cases where
this reason has been rejected by other courts. (Doc. 18 at
2). Plaintiff's reason for the late response is not a
good one, but it still falls within the “inadvertence,
mistake, or carelessness” that can constitute excusable
neglect. Pioneer, 507 U.S. at 388. The fourth
Pioneer factor also weighs against Plaintiff because
the delay at issue was clearly within Plaintiff's
fifth Pioneer factor weighs in favor of Plaintiff
because the Court finds that Plaintiff's counsel has
acted in good faith. Defendants seem to argue that Plaintiff
did not act in good faith because she filed the motion for
leave to file response before contacting Defendants. (Doc. 18
at 1). However, Plaintiff's counsel notes that she filed
the motion as soon as she realized her error in order avoid
delaying proceedings. (Doc. 19 at 3-4). The Court finds that
this does not demonstrate that Plaintiff's counsel was
acting in bad faith.
balancing the five Pioneer factors, the Court finds
that Plaintiff's counsel's neglect is excusable.
Accordingly, the Court grants Plaintiff's motion for
leave to respond, instanter (Doc. 17), and will
consider her response (Doc. 17-1).
MOTION FOR JUDGMENT ON THE PLEADINGS