United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
Denise Jackson brings this employment discrimination action
against defendants alleging claims under Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. §
621 et seq., as well as state law discrimination and
contract claims. (Doc. 1). This matter is before the Court on
defendants' partial motion to dismiss. (Doc. 12).
Plaintiff did not file a response in opposition to
move to dismiss Counts C (ADEA), D (Retaliation under Title
VII), E (Retaliation under ADEA), and G (breach of contract
claim) of plaintiff s complaint. (Doc. 12 at 1). Defendants
argue that Counts C, D, and E are barred because plaintiff
failed to exhaust her administrative remedies before filing
suit. (Doc. 12-1 at 3). Defendants argue that plaintiff filed
a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") and the Ohio Civil
Rights Commission ("OCRC") alleging claims of race
and sex discrimination, but did not allege retaliation or age
discrimination. (Id. at 3-4) (citing Exh. B, Doc.
12-3). Alternatively, defendants argue that plaintiffs Counts
D and E claims should be dismissed for failure to state a
claim for retaliation under Title VII or the ADEA because
plaintiff failed to plead facts that she "engaged in
protected activity, that the decision-makers knew she engaged
in protected activity, or that Wal-Mart took an adverse
action against her because of her participation in a
protected activity." (Id. at 4). Defendants
also argue that plaintiffs Count G claim for breach of
contract fails as a matter of law because its disciplinary
policy specifically stated that employment was at-will and
the employee handbook therefore did not create an express or
implied contract. (Id. at 5-6) (citing Exh. A, Doc.
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). Only “a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)).
"PT]he statement need only give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Id. (quoting Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (internal
quotation marks omitted) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). In ruling on a
motion to dismiss, the Court can consider "exhibits
attached thereto, public records, items appearing in the
record of the case and exhibits attached to [the]
defendant[s'] motion to dismiss, so long as they are
referred to in the Complaint and are central to the claims
contained therein." Bassett v. Nat'l
Collegiate Athletic Ass'n, 528 F.3d 426, 430
(6th Cir. 2008). See also Mediacom Southeast LLC v.
BellSouth Telecommunications, Inc., 672 F.3d 396, 399
(6th Cir. 2012).
Court finds defendants' partial motion to dismiss to be
well-taken. Counts C, D, and E should be dismissed for
failure to exhaust administrative remedies. Exhaustion of
administrative remedies is a precondition to filing a Title
VII or ADEA lawsuit. Lockett v. Potter, 259
Fed.Appx. 784, 786 (6th Cir. 2008); Allen v. Highlands
Hasp. Corp., 545 F.3d 387, 401 (6th Cir. 2008). In the
Sixth Circuit, a plaintiff must exhaust their administrative
remedies by alleging sufficient facts in an EEOC complaint to
put the EEOC on notice of the claim, regardless of whether or
not the plaintiff checked the appropriate box on the
EEOC's charge of discrimination form. Dixon v.
Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004). The
exhibits attached to defendants' motion to dismiss
demonstrate-and plaintiff does contend otherwise- that
plaintiff failed to exhaust her administrative remedies on
Counts C, D, and E under Title VII and the ADEA. (Exh. B,
Doc. 12-3). In filing her charge of discrimination, plaintiff
check-marked boxes indicating that she was discriminated
against on the basis of her race/color and sex.
(Id.). However, plaintiff did not check-mark the
boxes for age or retaliation, nor did she allege facts in the
body of her EEOC charge suggesting that she was discriminated
against on the basis of her age or retaliated against in
violation of Title VII or the ADEA. (Id.).
Court likewise agrees that plaintiffs Count G breach of
contract claim should be dismissed. Under Ohio law,
"absent fraud in the inducement, a disclaimer in an
employee handbook stating that employment is at will
precludes an employment contract other than at will based
upon the terms of the employee handbook." Reynolds
v. Extendicare Health Servs., Inc., No. 1:05-cv-00359,
2006 WL 2225836, at *9 (S.D. Ohio Aug. 1, 2006) (quoting
Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d
108, 110 (1991)), aff'd, 257 Fed.Appx. 914 (6th
Cir. 2007). Exhibit A, the progressive discipline policy
attached to defendants' motion to dismiss, explicitly
This information does not create an express or implied
contract of employment or any other contractual commitment..
. Employment with Walmart is on an at-will basis, which means
that either Walmart or the associate is free to terminate the
employment relationship at any time for any or no reason,
consistent with applicable law.
(Exh. A, Doc. 12-2). In light of this language and plaintiffs
failure to argue otherwise, the Court concludes that
plaintiffs breach of contract claim should be dismissed as a
matter of law because the employee handbook did not create an
express or implied contract of employment.
it is RECOMMENDED that defendants'
motion to dismiss Counts C, D, E, and G (Doc. 12) be
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after
being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the
proposed findings and recommendations. This period may be
extended further by the Court on timely motion for an
extension. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters
occurring on the record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon,
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14