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Darby v. Childvine, Inc.

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

November 20, 2019

SHERRYL DARBY Plaintiff,
v.
CHILDVINE, INC., et al., Defendants.

          ORDER GRANTING DEFENDANTS' RENEWED MOTION TO DISMISS

          MICHAEL R. BARRETT, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Defendants Childvine, Inc., Mayhugh, and Doczy's Renewed Motion to Dismiss. (Doc. 16). Plaintiff has filed a memorandum in opposition (Doc. 17), to which Defendants have replied (Doc. 18).[1] For the reasons that follow, Defendants' Motion will be GRANTED.

         I. BACKGROUND

         This is a civil rights action arising out of Plaintiff Sherryl Darby's short-lived employment with Childvine, Inc., an early chidcare provider. (Doc. 5 at PageID 21, 23 (¶¶1, 8)). Defendant Tyler Mayhugh is the director at Childvine and was Plaintiff's supervisor. (Id. at PageID 23 (¶¶ 9, 12)). Defendant Samantha Doczy[2] is a co-owner of Childvine. (Id. at PageID 23 (¶ 10)). Plaintiff was hired as an administrative assistant around August 2016. (Id. at PageID 23 (¶ 11)). She underwent a double mastectomy on October 25, 2016. (Id. at PageID 23, 24 (¶¶ 14, 17, 19)). Plaintiff received written notice of her termination approximately two weeks after her surgery. (Id. at PageID 24 (¶¶ 18, 19)).

         Plaintiff filed her original Complaint on September 21, 2018 against Defendant Childvine only, alleging she was terminated in violation of federal and state law because of her breast cancer diagnosis. (See Doc. 1). Childvine moved to dismiss, arguing that breast cancer is not a “per se disability” and highlighting Plaintiff's failure to allege any substantial limitation of a major life activity. (See Doc. 3). Plaintiff thereafter filed an Amended Complaint on November 16, 2018 in which she states, “In September 2016, Ms. Darby was diagnosed with breast cancer, which substantially limited her major life activity of normal cell growth.” (Doc. 11 at PageID 23 (¶ 11)). She added individual Defendants Mayhugh and Doczy, who, she believes “aided, abetted, incited, and compelled Childvine's discrimination of Ms. Darby in violation of Ohio law by creating false justifications for terminating Ms. Darby because of her breast cancer.” (Id. at PageID 26 (¶ 32)). Defendant Childvine filed an Answer (Doc. 6), but newly-named Defendants Mayhugh and Doczy filed a motion to dismiss in which they argue that Plaintiff cannot allege that she is disabled under state law and that they are not “covered entities”[3] under federal law. (See Doc. 11).

         A conference was held at the request of the parties on August 30, 2019. (See Minute Entry dated 08/30/2019). Through written discovery, Defendants learned that Plaintiff was not diagnosed with cancer as alleged in the Amended Complaint, but, instead, tested positive for a gene mutation-BRCA1-that is associated with an increased risk of cancer. (See Doc. 16 at PageID 64-66). And, in response, Plaintiff elected surgery “to decrease her risk of developing breast cancer.” (Id. at PageID 66). In a follow-up Notation Order, the Court denied as moot Mayhugh and Doczy's pending motion to dismiss and directed them to file a revised motion to address this new development. (See Notation Order dated 09/06/2019). The instant Motion, filed on behalf of all three Defendants, is now fully briefed and ripe for disposition.

         II. LEGAL STANDARD

         In 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)). “[T]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)). Although the plaintiff need not plead specific facts, the “[f]actual allegations must be enough to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 555, 570). 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)). Although the court must accept well-pleaded factual allegations as true for purposes of a motion to dismiss, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (citing Papasan v. Attain, 478 U.S. 265, 286 (1986)).

         III. ANALYSIS

         Before discussing the merits of Defendants' Motion, the Court must first resolve a procedural wrinkle. Citing Fed.R.Civ.P. 15(b)(2), Defendants ask the Court “to have the pleadings amended to conform with the evidence that Plaintiff never had breast cancer.” (Doc. 16 at PageID 67 (“Instead, Plaintiff had a family history o[f] cancer and tested positive for a BRCA1 mutation, which increased her chance of having cancer in the future.”)). But Plaintiff responds, and correctly so, that Rule 15(b)(2) is “facially inapplicable.” (Doc. 17 at PageID 77). “In other words, a party can invoke Rule 15(b) during and after trial, and, even then, only if an unpleaded issue was actually tried.” Nolan v. Thomas, No. 16-cv-12224, 2018 WL 3122597, at *10 (E.D. Mich. June 26, 2018) (citing Siler v. Webber, 443 Fed.Appx. 50, 58 (6th Cir. 2011) (emphasis added)).

         As an alternative, and “in an effort to resolve” the question presented under Rule 12(b)(6) rather than Rule 56, Plaintiff seeks leave to amend her operative complaint to conform with “the evidence produced in discovery.” (Doc. 17 at PageID 75). Plaintiff proposes the following amendment:

(1) Ms. Darby attended a routine appointment with her OBGYN;
(2) The OBGYN found an epithelial cell abnormality;
(3) The doctor referred her for genetic ...

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