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Conrad v. Us Bank NA

United States District Court, S.D. Ohio, Western Division

June 19, 2019

JEANNETTE CONRAD, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (Doc. 16)

          TIMOTHY S. BLACK, UNITED STATES DISTRICT JUDGE

         This 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).

         I. BACKGROUND

         Plaintiff 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. ¶ 15).

         Conrad 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).

         Conrad 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. ¶¶ 34-35).

         Conrad 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).

         Conrad 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).[1] 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. ¶¶ 44-83).

         Defendants 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.

         II. MOTION FOR LEAVE TO RESPOND

         Before 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 motion.

         Pursuant 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.

         Federal 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.

         The 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 counsel's control.

         The 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.

         Upon 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).

         III. MOTION FOR JUDGMENT ON THE PLEADINGS

         A. ...


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