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O'Dell v. Kelly Services, Inc.

United States District Court, E.D. Michigan, Southern Division

February 21, 2017

SOVEREIGN O'DELL, Plaintiff,
v.
KELLY SERVICES, INC.; JOHN NICHOLSON; TRACI HOPPER; DAVID EAGER; RICK PATTERSON; POTTER, DEAGOSTINO, O'DEA & PATTERSON; FLINT TOWNSHIP POLICE DEPARTMENT, BERNADETTE KING; GLOBAL SECURITY AND INVESTIGATIONS; and OFFICER FNU RYE; Defendants.

          R. Steven Whalen Magistrate Judge

          OPINION AND ORDER GRANTING FLINT AND RYE'S MOTION FOR JUDGMENT ON THE PLEADINGS [30] AND GRANTING IN PART THE KELLY DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS [37]

          Honorable Laurie J. Michelson Judge

         In 2012, Defendant Kelly Services, Inc., placed Plaintiff Sovereign O'Dell in a call-center job. While on the job, O'Dell experienced symptoms from several medical conditions. According to O'Dell, Defendants Bernadette King, John Nicholson, and Traci Hopper refused to provide her with requested workplace accommodations. O'Dell further maintains that Nicholson and Hopper wrongly terminated her employment with Kelly and that Nicholson filed a false complaint about her with the police department of Defendant Flint Township. O'Dell also believes that Defendant Rick Patterson, and his law firm, Defendant Potter, DeAgostino, O'Dea & Patterson (the Potter Firm), wrongly challenged her claim for unemployment benefits. Based on these and other alleged wrongs, O'Dell sued Kelly, King, Hopper, Nicholson, David Eager, Global Security and Investigations, Patterson, and the Potter Firm (the Kelly Defendants) and Flint Township and Officer Rye (the Flint Defendants).

         Both the Kelly Defendants and the Flint Defendants have filed a motion for judgment on the pleadings. Having reviewed the parties' briefs, the Court does not believe oral argument would aid in resolving the two motions. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the Court will grant the Flint Defendants' motion (R. 30) and grant in part the Kelly Defendants' motion (R. 37).

         I.

         Because Defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(c), the Court presents as true the non-conclusory factual allegations of O'Dell's Second Amended Complaint (which the Court more simply refers to as the “complaint”). See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Daily Servs., LLC v. Valentino, 756 F.3d 893, 898 (6th Cir. 2014). Because O'Dell's pro se complaint is insufficient to present a complete factual narrative, the Court has-quite limitedly-supplemented the complaint with facts consistent with the complaint and taken from public records (e.g., O'Dell's EEOC charge, a complaint and motion from state-court proceedings, a police report, and documents filed in an unemployment proceeding). See Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).

         In 2012, Defendant Kelly Services, Inc. contacted O'Dell about a telephone-operator job at Diplomat Specialty Pharmacy. (R. 24, PID 153 ¶ 16.) The terms of the offer included permanent employment and medical insurance once O'Dell completed 500 hours at Diplomat. (Id.) When O'Dell expressed to Kelly that she was medically prohibited from working in a non-routine environment, Kelly assured O'Dell that the job only involved answering the phone and transferring the call. (R. 24, PID 153 ¶¶ 18, 19.) O'Dell accepted the offer and began working at Diplomat's call center. (R. 24, PID 153 ¶¶ 20, 21.)

         “From day 1, ” O'Dell was provided with “constantly changing directives.” (R. 24, PID 153 ¶ 23.) O'Dell says that these frequent changes “triggered [her] impairments.” (Id.) O'Dell apparently refers to her “PTSD, Adjustment Disorder with Anxiety and Depression, and Traumatic Brain Injury.” (See R. 24, PID 161 ¶ 98.)

         O'Dell thus approached Defendant Bernadette King, the site supervisor, about possibly needing an accommodation for her impairments. (R. 24, PID 153 ¶¶ 24, 25.) Because King was unsure whether Kelly was required to provide accommodations, King told O'Dell that she would contact her boss at Kelly. (Id. ¶ 26.) O'Dell ended up making a formal request for accommodations, but, in an email, King informed O'Dell that no accommodations would be provided. (Id. ¶ 27.)

         In addition to her mental impairments, O'Dell also suffers from menometrorrhagia (excessive uterine bleeding), dysmenorrhea (menstrual cramps), and fibroid tumors (noncancerous growths of the uterus). (R. 24, PID 161 ¶¶ 97, 99-100.) During her employment, O'Dell experienced “multiple heavy menstrual cycles each month” and needed to “spend time in the restroom managing the persistent bleeding.” (Id. ¶¶ 99-100.) At one point, an employee with supervisory authority followed O'Dell into the bathroom, entered the stall adjacent to one O'Dell was using, and then followed O'Dell out of the bathroom. (Id. ¶ 102.) This caused O'Dell “additional psychological stress.” (Id. ¶ 103.)

         At some point (the complaint does not provide dates for a number of significant events), O'Dell contacted Kelly's corporate headquarters. (R. 24, PID 154 ¶ 28.) Someone from Kelly's human-resources, calling on behalf of Defendant Tracy Hopper, told O'Dell that Kelly would not investigate her hostile work-environment claim based on the bathroom incident unless she could prove that she was in fact followed into the bathroom. (Id. ¶ 29.) The HR employee also told O'Dell that no work accommodations would be provided. (Id. ¶ 30.)

         At some later point, O'Dell again contacted Kelly's corporate headquarters about an accommodation. (R. 24, PID 154 ¶ 31.) This time, Defendant John Nicholson, the district manager for Kelly's Flint, Michigan location, responded to O'Dell. (Id. ¶ 31.) Nicholson told O'Dell that he wanted to investigate the situation, would speak with King, and would then schedule a meeting to discuss the requested accommodations. (Id. ¶ 33.) Nicholson also told O'Dell that she had worked for over 500 hours but had not been made a permanent employee of Diplomat and that her job duties would be expanded to include prescription-refills. (See R. 24, PID 154 ¶ 34.) But O'Dell was medically prohibited from handling refills because “it involves cash, other payments, counting, and is not routine.” (Id.)

         On May 20, 2013, [1] O'Dell met with Nicholson and Hopper. At the meeting, O'Dell was told that no investigation had been completed, that Nicholson had not spoken to King, and that Nicholson and Hopper had decided that O'Dell “should not work at Diplomat even one more day.” (R. 24, PID 154 ¶ 35.)

         At the meeting, Nicholson also told O'Dell that they would find her employment within two weeks. (R. 24, PID 154 ¶ 36.) Between May 20 and August 28, 2013, Nicholson consistently told O'Dell that she was still a Kelly employee and that they were seeking work for her. (Id. ¶ 154.) But O'Dell was only given one interview. (Id. ¶ 37.) And that job had been filled before Kelly had allowed O'Dell to interview. (Id.)

         Kelly discharged O'Dell on August 12, 2013. (R. 37, PID 358.) On or around this date, Hopper told O'Dell that she was prohibited from ever contacting any Kelly employee in the future. (R. 24, PID 163 ¶ 117.)

         According to a police report attached to O'Dell's brief, on the day of O'Dell's termination, Defendant Thomas Rye, a Flint Township police officer, responded to a complaint made by Nicholson. (See R. 37, PID 566.) According to the complaint, Nicholson had accused O'Dell of “threaten[ing] him and [coming] on Kelly property to carry out the threats.” (R. 24, PID 155 ¶ 43.) O'Dell says that the police complaint was false and an act of retaliation. At some point (again the complaint does not say when), Nicholson and Hopper had taken the position that when O'Dell “asked for accommodations, pursuant to Kelly policy, it is considered a voluntary quit.” (Id. ¶ 40.) O'Dell responded by threatening to report this mischaracterization to the State of Michigan, which, says O'Dell, caused Nicholson to retaliate with the police complaint. (Id. ¶¶ 42-43.)

         Soon after her termination (perhaps the next day), O'Dell received a letter from Defendant David Eager. (R. 24, PID 155 ¶ 45, PID 163 ¶ 117.) According to the complaint, Eager is an employee of Defendant Global Security and Investigation Services (Kelly disputes this). (See Id. ¶ 46.) Eager noted that O'Dell had been warned not to contact Kelly employees in the future and “threatened unspecified harm to [O'Dell] if the command was not obeyed.” (Id. ¶ 118.)

         On August 16, 2013 (four days after her termination at Kelly), O'Dell sued Kelly and Diplomat Specialty Pharmacy in state court. (R. 37, PID 337-47.) The Potter Firm and, in particular, Defendant Rick Patterson, represented Kelly. On September 6, 2013, Kelly moved for summary disposition. (R. 37, PID 327.) Attached to that motion was a printout of one of O'Dell's Facebook posts. (R. 37, PID 349.) The post discusses workplace violence. (See id.) O'Dell alleges that the post was private and that Kelly hacked her Facebook account to obtain it. (See R. 24, PID 155 ¶¶ 49-51.) On September 30, 2013, the state court granted Kelly summary disposition. Case Register of Actions, Michigan Circuit Court for Genesee County, Case No. 13-101033 available at http://www.co.genesee.mi.us/roaccsinq/default.aspx.

         At some point, O'Dell applied for unemployment benefits. In October 2013, O'Dell was found not qualified, but in January 2014, an administrative law judge found that O'Dell was entitled to unemployment. (R. 48, PID 497, 500.) Kelly (via Patterson and the Potter Firm) unsuccessfully appealed this determination. (See R. 48, PID 508, 593-94.) It was during the course of these unemployment proceedings that O'Dell learned of the police complaint. (R. 24, PID 155 ¶ 44.)

         O'Dell filed this lawsuit on October 7, 2015. Her pro se complaint sets forth 10 counts, many asserting several claims. (See generally R. 24.)

         Both the Kelly Defendants and the Flint Defendants move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). (R. 30, 37.)

         II.

         A Rule 12(c) motion is governed by the legal standards that govern a Rule 12(b)(6) motion. See Daily Servs., LLC v. Valentino, 756 F.3d 893, 898 (6th Cir. 2014); Marais v. Chase Home Fin. LLC, 736 F.3d 711, 713 (6th Cir. 2013). This means that the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies here. Under that standard, a court first culls legal conclusions from the complaint, leaving only factual allegations to be accepted as true. Iqbal, 556 U.S. at 679. The inquiry then becomes whether the remaining assertions of fact “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Although this plausibility threshold is more than a “sheer possibility that a defendant . . . acted unlawfully, ” it is not a “‘probability requirement.'” Id. (quoting Twombly, 550 U.S. at 556). Whether a plaintiff has presented enough factual matter to “‘nudg[e]'” his claim “‘across the line from conceivable to plausible'” is “a context-specific task” requiring this Court to “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 683 (quoting Twombly, 550 U.S. at 570).

         III.

         A.

         Count IV asserts that Kelly (only) violated the Americans with Disabilities Act by failing to accommodate O'Dell's mental and physical disabilities. (R. 24, PID 162 ¶¶ 110-11.) She asserts that while at Diplomat, her mental impairments were triggered resulting in memory lapses, difficulty concentrating, and panic attacks. (R. 24, PID 162 ¶ 104.) O'Dell says that Kelly failed to provide the accommodations she sought, including being assigned to another company. (See R. 24, PID 162 ¶¶ 105-07.)

         Kelly seeks to dismiss O'Dell's ADA claims on multiple grounds.

         Kelly first argues that any claims based on events before May 25, 2013-including any failure to accommodate her disabilities at Diplomat-are untimely. (R. 37, PID 310-11.) In particular, Kelly argues that under 42 U.S.C. § 12117(a), any claims based on conduct more than 300 days before an EEOC charge is filed are untimely, O'Dell filed her EEOC charge on March 21, 2014, and that 300 days prior to March 21, 2014 is May 25, 2013. (R. 37, PID 310.)

         Kelly claims that the date stamp on O'Dell's EEOC charge establishes a March 21, 2014 filing date. But O'Dell says she first sent her charge to the Michigan Department of Civil Rights and requested that the charge be filed with the EEOC. (R. 47, PID 425; R. 37, PID 359.) And the MDCR is a Fair Employment Practices agency. See 29 CFR § 1601.80. These three facts matter because “[w]hen a charge is initially presented to a FEP agency and the charging party requests that the charge be presented to the Commission, ” the charge is deemed filed with the EEOC on the earliest of three dates, including the date that the FEP agency waives its “right to exclusively process the charge.” See 29 C.F.R. § 1601.13(b)(1). Thus, the effective filing date may be several days before the date time stamped on the charge. And a few days is significant because O'Dell says she was removed from Diplomat on May 20, 2013, and, under Kelly's calculations (based on the time stamp), events before May 25, 2013 are untimely. While the MDCR's decision is likely a public record that the Court could have considered on a Rule 12(c) motion, neither party has provided it. Thus, given the five-day difference, the Court will not at this point dismiss as untimely O'Dell's ADA claims that she did not receive a reasonable accommodation while she was at Diplomat.[2]

         Kelly next argues that O'Dell's ADA claims are subject to dismissal because she has not alleged facts showing that she has a “disability” within the meaning of the Act. (R. 37, PID 312).

         The Court disagrees. Under the ADA, “[t]he term ‘disability' means . . . (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). In her complaint, O'Dell has alleged that she suffers from “PTSD, Adjustment Disorder with Anxiety and Depression, and Traumatic Brain Injury” that causes her to experience “lapses of time and memory loss akin to Alzheimer's.” (R. 24, PID 161, ¶ 98.) She also asserts that she has physical impairments of “menometrorrhagia, dysmenorrhea, fibroid tumors, and stress-induced stuttering” which causes multiple heavy menstrual cycles per month and pain. (R. 24, PID 161 ¶ 97.) Accepting these allegations as true, it is plausible that these medical conditions substantially limit a major life activity such as sleeping or concentrating. See 42 U.S.C. § 12102(2)(A).

         Kelly next argues that O'Dell's failure-to-accommodate claims under the ADA are subject to dismissal because she has “not alleged facts to demonstrate that she was qualified to perform the essential job functions of working at [Diplomat] with or without an accommodation.” (R. 37, PID 312-13.)

         Insofar as the Diplomat job goes, the Court agrees with Kelly. O'Dell has “the burden of proposing an accommodation and proving that it is reasonable.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir. 2010) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996) abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012)). Yet O'Dell's complaint nowhere specifies the accommodations she requested so that she could continue to work at Diplomat.

         Even so, the Court will not completely dismiss O'Dell's claim that Kelly deprived her of a reasonable accommodation while at Diplomat. In her response to the Kelly Defendants' motion, O'Dell says nothing about requesting accommodations for her physical impairments. But she does assert that she asked that her difficulties with the non-routine environment at Diplomat (i.e., her mental impairments) be accommodated “by simply providing a single set of instructions or, alternatively a single supervisor per shift to answer to, rather than the upwards of 8 dissenting opinions on proper protocol.” (R. 47, PID 436.) Without more information, the Court cannot say that an accommodation of a single set of instructions or a single supervisor is, as a general matter, unreasonable. See Monette, 90 F.3d at 1184 n.10 (providing that the employee's burden is only to show that the requested accommodation was reasonable in a general sense, after which, the employer would have the burden of showing that the accommodation was an undue hardship given the employer's particularized situation); accord Walsh v. United Parcel Serv., 201 F.3d 718, 726 n.3 (6th Cir. 2000). As such, O'Dell will be given leave to amend her failure-to-accommodate claim to include the allegation that, while at Diplomat, she asked for a single set of instructions or a single supervisor per shift to accommodate her mental impairments.

         Kelly's argument that O'Dell was medically prohibited from filling prescriptions does not require a different result. The complaint indicates that refills were not initially a requirement of the Diplomat job. (R. 24, PID 154 ¶ 34.) Thus, O'Dell's inability to fill prescriptions would at most warrant dismissal ...


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