United States District Court, S.D. Ohio, Western Division
ORDER GRANTING DEFENDANTS' RENEWED MOTION TO
MICHAEL R. BARRETT, JUDGE UNITED STATES DISTRICT COURT.
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.
For the reasons that follow, Defendants' Motion will be
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 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 (¶¶
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” under federal law.
(See Doc. 11).
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.
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)).
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)).
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 ...