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O'Dell v. Kelly Services, Inc.

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

January 31, 2018


          Magistrate Judge R. Steven Whalen.



         This is Round 2 of Defendants' efforts to preclude portions of Plaintiff's lawsuit. This time, Defendant Kelly Services, Inc. has moved to dismiss part of Plaintiff Sovereign O'Dell's complaint primarily on the basis that O'Dell did not file for relief in time. But the argument is more involved than Kelly appreciated given that the complaint raises many claims and is vague about when certain events took place. In the end, the Court finds that Kelly's timeliness arguments have a limited effect on O'Dell's claims under the Americans with Disabilities Act. And they only warrant partial dismissal of O'Dell's defamation claims. The Court will, however, dismiss the remainder of O'Dell's defamation claims on the grounds of privilege.



         The Court presents the non-conclusory allegations of O'Dell's third-amended complaint as fact. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         O'Dell possesses certain work skills but also suffers from impairments that limit her ability to complete certain tasks. In addition to two associate's degrees, O'Dell holds a bachelor's degree in “Organizational Leadership and Communication.” (R. 60, PID 776.) When she tested for employment at Kelly Services, she tested at the “Expert” level. (R. 60, PID 776.) But O'Dell's physical impairments of menometrorrhagia (excessive uterine bleeding), dysmenorrhea (menstrual cramps), and fibroid tumors (noncancerous growths of the uterus) “substantial[ly]” limit her ability to sit, stand, walk, and concentrate (among other things). (R. 60, PID 778.) O'Dell's Post-Traumatic Stress Disorder and Adjustment Disorder with Anxiety and Depression “substantially” limit her ability to sleep, think, concentrate, and communicate (among other things). (R. 60, PID 778.)

         In December 2012, Kelly Services placed O'Dell as an operator in a call center. (R. 60, PID 775.) (Although her third-amended complaint does not say so, earlier versions provide that the call center was for a pharmacy. (R. 24, PID 153.))

         After O'Dell began working at the call center, the “[e]ssential functions” of her job changed. (See R. 60, PID 775.) She began having to handle insurance and money. (Id.) This was stressful for O'Dell and thus, was “medically prohibited” by her impairments. (Id.) Further, the “metrics and procedures” of the job were changed multiple times each day. (Id.) This too was not compatible with O'Dell's impairments. (See id.)

         As such, O'Dell requested job accommodations. “Between January 2013 and May 2013” (the third-amended complaint does not specify further), O'Dell asked to report to one supervisor each shift (instead of six or eight) or, alternatively, to have a single set of directives; to not handle cash or process payments; to be reassigned to a “routine” position; and for “non-limited, non-monitored use of restroom facilities” to manage her “excessive menses bleeding.” (R. 60, PID 776.) And between “February and May 20, 2013” (the complaint is also not more specific), three Kelly “agents”-Bernadette King, John Nicholson, and Traci Hopper-told O'Dell that “no accommodations would be provided to allow her to continue working as a Call Center Operator.” (R. 60, PID 776.)

         But on May 20, 2013, Nicholson and Hopper (on behalf of Kelly) told O'Dell “that the accommodation [that] would be provided [would be a] reassignment to a vacant position at a different worksite, with a start-date [in] two-weeks, ” i.e., June 3, 2013. (R. 60, PID 776.) This did not come to fruition. And while O'Dell continued to stay in contact with Kelly about reassignments through August 20, 2013, she was never reassigned. (R. 60, PID 776-77.) This despite the fact that her education and skill level qualified her for multiple positions that Kelly was “activity seeking to fill.” (R. 60, PID 776-77.)

         Meanwhile, O'Dell applied for unemployment benefits. This was consistent with Kelly's employee handbook: it directs employees to file for unemployment between jobs and says that Kelly will not oppose such applications. (See R. 60, PID 780.) But Kelly, through Nicholson, Hopper, and King, did oppose O'Dell's award of unemployment benefits. (R. 60, PID 777.) They did this by classifying O'Dell's request for accommodations as “voluntar[ily] quitting” her position. (R. 34, PID 777.)

         On August 9, 2013, O'Dell advised Nicholson and Hopper (and thus Kelly) that by classifying her requests for accommodations as quitting they were committing fraud. (R. 34, PID 777.) She further told Nicholson and Hopper that she planned to report the fraud to the State of Michigan. (R. 34, PID 777.)

         Three days later, on August 12, Nicholson made a complaint to the Flint Township Police Department. (See R. 34, PID 777.) In particular, Nicholson told police that O'Dell had threatened him via phone, email, and Facebook, had shown up at Kelly offices to harm him, and had “peeled out” in her car when he came out of the back office. (R. 60, PID 779.) That same day, Hopper and David Eager called O'Dell and terminated her employment. (Id.)

         At some point, one or more of Nicholson, Hopper, Eager, King, or Patterson accessed O'Dell's “private, password-protected Facebook post.” (R. 60, PID 782.) In the post, O'Dell discusses workplace violence. (See R. 37, PID 349.) This post was provided to the Flint Township Police Department, the unemployment agency, and to the Equal Employment Opportunity Commission. (R. 60, PID 782.)

         In March 2014, O'Dell filed a charge against Kelly with the Michigan Department of Civil Rights and indicated that she also wanted the charge filed with the EEOC. (R. 37, PID 359.) The MDCR found that the charge was filed too late with its office and would be forwarded to the EEOC to process. (R. 63, PID 815.) In July 2015, the EEOC issued O'Dell a right-to-sue letter. (R. 48, PID 592.)

         In October 2015, O'Dell filed this lawsuit. (R. 1.)


         Kelly Services, Nicholson, Hopper, King, Eager, and Patterson, to which the Court will simply call “Kelly, ” ask the Court to dismiss part of O'Dell's third-amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 63.) In the main, Kelly argues that O'Dell was too late in filing some of her claims with the EEOC or this Court. (See id.)



         Before examining whether O'Dell's claims are timely, there is a threshold matter to resolve. Kelly previously moved to dismiss, and this Court dismissed a host of O'Dell's claims. See O'Dell v. Kelly Servs., Inc., No. 15-CV-13511, 2017 WL 676945, at *14 (E.D. Mich. Feb. 21, 2017). In so doing, the Court said O'Dell could re-plead her defamation claim and “her claims that Kelly retaliated against her in violation of the ADA when it filed a police complaint and that Kelly failed to provide reasonable accommodations.” Id. But, this Court cautioned, “[a]bsent a motion and an order granting that motion, O'Dell is not otherwise permitted to amend her complaint.” Id. O'Dell has not sought leave (and has said that her third-amended complaint is her last (see R. 64)), so the claims of her third-amended complaint should be limited to claims of defamation, retaliation under the ADA, and failure-to-accommodate under the ADA. Thus, Kelly asks this Court to strike certain allegations of the third-amended complaint on the grounds that they are beyond the amendments this Court permitted. (R. 63, PID 805.)

         So before turning to issues of timeliness, the Court will identify the legal claims asserted (a task Kelly has not undertaken) and then decide which are within the scope of this Court's leave to amend.

         Because the third-amended complaint was not drafted by an attorney, the Court has read it liberally. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Having done so, it appears to set forth claims of discrimination, retaliation, and failure-to-accommodate under the ADA. It also claims defamation.

         Although pled under the heading “retaliation, ” it appears that O'Dell has two claims of disability discrimination under the ADA. She asserts that her “emotional impairments significantly impair her ability to communicate clearly, ” yet Kelly fired her for an “unprofessional communication” with Nicholson. (See R. 60, PID 780.) It also appears that O'Dell believes Kelly discriminated by using the fact that she “self-identified as impaired” as grounds for not reassigning her to available positions. (See R. 60, PID 781.)

         O'Dell apparently has five retaliation claims under the ADA: (1) Kelly did not reassign O'Dell to available positions in retaliation for “request[ing] accommodations” (see R. 60, PID 781); (2) Nicholson made a report to the police in retaliation for O'Dell's request for accommodations (see R. 60, PID 779); (3) Nicholson made the report in retaliation for O'Dell's threat to report Kelly's mischaracterization of her accommodation requests as quitting (see id.); (4) Kelly terminated O'Dell's employment in retaliation for O'Dell's threat to report Kelly's ...

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