Opinion
Case No. 3:22-CV-00489-JGC
11-10-2022
Nick KATIB, Plaintiff v. USF HOLLAND LLC, Defendant.
David E. Byrnes, Frederick M. Bean, Spitz Law, Beachwood, OH, for Plaintiff. Constantine Z. Pamphilis, J. Michael Wilson, Kasowitz Benson Torres, Houston, TX, Denise M. Hasbrook, Roetzel & Andress, Toledo, OH, for Defendant.
David E. Byrnes, Frederick M. Bean, Spitz Law, Beachwood, OH, for Plaintiff. Constantine Z. Pamphilis, J. Michael Wilson, Kasowitz Benson Torres, Houston, TX, Denise M. Hasbrook, Roetzel & Andress, Toledo, OH, for Defendant.
ORDER
James G. Carr, Sr. United States District Judge
This is an employment discrimination case. Plaintiff, Nick Katib, alleges that his former employer, USF Holland LLC (Holland), discriminated against him and violated public policy when it terminated him for refusing to drive an unclean truck.
Plaintiff brings claims under Title VII and Ohio law for race discrimination and national origin discrimination, as well as a tort claim for wrongful termination in violation of public policy.
Pending is defendant's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 10). For the reasons discussed below, I grant the motion as to plaintiff's public policy claim and deny it as to plaintiff's discrimination claims.
Background
Plaintiff is an Arab man who immigrated from the Middle East, specifically, Kuwait. (Doc. 9, pgID 67-68). On or about May 24, 2021, he began working as a City Truck Driver for Holland at their location in Bowling Green, Ohio. (Id., pgID 68).
Plaintiff alleges that he informed his manager, Wes Polinsky, and his colleagues of his race and national origin and that his colleagues often commented on his accent. (Id.).
On or about June 30, 2021, plaintiff alleges that Mr. Polinsky asked him to drive "an unsanitary and filthy truck filled with excessive garbage throughout the inside of the truck's cab." (Id.). Plaintiff claims the truck contained bags of garbage, bottles of unknown liquid, used articles of clothing, and dirty tissues, that the dashboard and console were covered with spilled, dried liquid, and that there was an "awful odor." (Id., pgID 69).
Plaintiff alleges that he told Mr. Polinsky he would not drive the truck because it was dirty and in an "unsafe condition." (Id., pgID 71). Plaintiff further claims that he asked Mr. Polinsky if he could drive another truck, and Mr. Polinsky began yelling at plaintiff, demanding that he drive the unclean truck or lose his job. (Id.).
Plaintiff still refused to drive the truck, and Mr. Polinsky did, in fact, fire him that same day. (Id.).
Plaintiff additionally alleges that two other employees, who are not Arab or from the Middle East, refused to drive the same truck that day, and Mr. Polinsky did not terminate or discipline them. (Id., pgID 72). Instead, Mr. Polinsky allegedly permitted them to wait in the break room for another driver to return a clean truck. (Id.).
Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted).
When considering a Rule 12(b)(6) motion, I must "construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). A plaintiff, however, must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, supra, 550 U.S. at 555, 127 S.Ct. 1955.
Discussion
Plaintiff's complaint contains five claims. He alleges one count of wrongful termination in violation of public policy, two counts of race discrimination, and two counts of national origin discrimination.
1. Public Policy Claim
Plaintiff claims that his termination violated several public policies outlined in both Ohio legislation and federal regulations. He highlights two provisions of O.R.C. § 4101 that require employers to provide safe working environments for their employees. See O.R.C. § 4101.11-12. He also points to several provisions of the Federal Motor Carrier Safety Regulations that prohibit employers from requiring drivers to operate commercial vehicles in which they cannot freely move their arms and legs, access the necessary equipment, or escape in case of emergency. See 49 C.F.R. § 392.9(a)(3), 390.6. Plaintiff claims that defendant violated the public policies inherent in these laws when it terminated him for refusing to drive the unclean truck.
Defendant responds that plaintiff cannot make out a case of wrongful termination in violation of public policy because he has not alleged sufficient facts to satisfy the jeopardy element of the claim. Defendant argues that this element requires plaintiff to have invoked a governmental policy, not just a personal concern, in connection with his refusal to drive the truck. Because he has not alleged that he did so, his claim fails.
Plaintiff contends that he has invoked a governmental policy in making his complaint because he reported to Mr. Polinsky that the truck was unclean and unsafe. This complaint, plaintiff contends, is "directly related to and in furtherance of" several "codified public policies" regarding driver safety. (Doc. 12, pgID 123).
To establish a wrongful termination in violation of public policy, plaintiff must show:
(1) a clear public policy exists and is manifested in a state or federal constitution, in statute or administrative regulation, or in the common law (the clarity element), (2) dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element), (3) the plaintiff's dismissal was motivated by conduct related to the public policy (the causation element), and (4) the employer lacked an overriding legitimate business justification for the dismissal (the overriding-justification element).Sutton v. Tomco Machining, Inc., 129 Ohio St. 3d 153, 156, 950 N.E.2d 938 (2011).
Defendant moves to dismiss on only the second element, the jeopardy element. Therefore, I limit my analysis to that element.
The Sixth Circuit has clarified that to satisfy the jeopardy element, a plaintiff "must at least have made clear to his employer that he is invoking a governmental policy as the basis for his complaint, not just his own self-interest." Jermer v. Siemens Energy & Automation, Inc., 395 F.3d 655, 659 (6th Cir. 2005). While the employee need not cite a specific policy or law in communicating with the employer, the complaint should put the employer on notice that the employee "is acting not only for himself, but also for the public at large." Id.; see also O'Connor v. Nationwide Children's Hosp., 723 F. App'x 321, 322-23 (6th Cir. 2018) (a "reasonable employer" should understand that "the employee relies on the policy as the basis for his complaint").
Plaintiff contends that Jermer does not apply here because in it, the Sixth Circuit resolved the jeopardy issue on summary judgment, not on a motion to dismiss. But the Sixth Circuit later addressed this very argument and found: "That Jermer considered an appeal from a summary judgment grant rather than a Rule 12(b)(6) dismissal offers no legitimate basis to mitigate its precedential value here, particularly because the jeopardy element presents a question of law." O'Connor v. Nationwide Children's Hosp., 723 F. App'x 321, 323 (6th Cir. 2018). Therefore, plaintiff's argument is without merit.
While the Ohio Supreme Court has not spoken as to this specific requirement, several Ohio appellate courts have adopted it. See Coldly v. Fuyao Glass Am., Inc., 191 N.E.3d 514, 530 (Ohio Ct. App. 2d Dist. 2022); Beckloff v. Amcor Rigid Plastics USA, LLC, 93 N.E.3d 329, 341 (Ohio Ct. App. 6th Dist. 2017); Zwiebel v. Plastipak Packaging, Inc., 2013-Ohio-3785, ¶ 32, 2013 WL 4768768 (Ohio Ct. App. 3d Dist.); Gaskins v. Mentor Network-REM, 2010-Ohio-4676, ¶ 17, 2010 WL 3814560 (Ohio Ct. App. 8th Dist.).
Plaintiff alleges that he notified his employer of the following: "that he could not drive the Unsanitary Truck because of its unclean, unhealthy, and unsafe condition," that the truck was left in a "disgusting condition," and that it created an "unclean environment." (Doc. 9, pgID 71). He also claims that he asked Mr. Polinsky if he could drive another truck that was "clean and safe." (Id.).
In analyzing those allegations, I agree with defendant that they are insufficient to show plaintiff was invoking governmental policy as the basis for his complaint. Rather, his allegations suggest that he personally did not want to drive the truck.
The facts here are similar to those in Hernandez v. Pitt Ohio Exp., LLC, No. 3:11 CV 1507, 2012 WL 3496860 (N.D. Ohio Aug. 14, 2012) (Katz, J.). In that case, the plaintiff, a truck driver, alleged that he "was instructed to work in the back of a truck with a temperature of one hundred and ten degrees, all day." Id. at *1. He notified the dispatcher that "it was too hot to work, and that the conditions were unsafe." Id. He subsequently refused to complete his assignment. Id. The court found that those facts were not sufficient to satisfy the jeopardy element of a public policy claim because they reflected a concern for personal safety, not a governmental policy in furtherance of workplace safety generally. Id. at *3.
Similarly here, plaintiff notified his supervisor that the truck was unclean, and he believed it to be unsafe. He does not allege any facts indicating that his complaints were in furtherance of a governmental policy. While plaintiff need not cite to a specific statute or regulation in his complaint to his supervisor, the case law is clear that generally alleging a work environment is unsafe does not, without more, satisfy the jeopardy element of a public policy claim. See id.; O'Connor, supra, 723 F. App'x at 323 (employee complaint that an elevator caused her injury and was unsafe insufficient because "[c]omplaining generally about a precarious elevator on the premises is not enough to clearly notify employers 'that they are no longer dealing solely with an at-will employee, but with someone who is vindicating a governmental policy' ").
Plaintiff contends that O'Connor does not apply because the plaintiff in that case did not list in her complaint the specific laws upon which she based her public policy claim. Plaintiff here, however, has done so. But that argument misses the point. Whether plaintiff pled the specific laws in his complaint is irrelevant to what his employer understood at the time he voiced his concerns. That is the relevant inquiry under Sixth Circuit law.
A reasonable employer in defendant's position would not have understood that plaintiff was attempting to vindicate a governmental policy with his comments, which, as alleged, were vague and nonspecific. Rather, it appears that he was expressing concern for his own comfort and safety and his desire to not drive the truck because it was dirty. Cf. Bender v. Champlain Enterprises, LLC, 797 F. App'x 1008, 1015 (6th Cir. 2020) (complaints that certain practices could "jeopardize pilot safety" could reasonably be interpreted as individual grievances against plaintiff's supervisor and therefore did not satisfy jeopardy element).
Therefore, I find that plaintiff has not alleged facts sufficient to support his claim of wrongful termination in violation of public policy, and I must dismiss the corresponding count (Count V) in the complaint.
2. Race and National Origin Discrimination
Plaintiff also brings claims for race and national origin discrimination under Title VII and Ohio law. Central to those claims are his allegations that defendant did not discipline two other employees, who are neither Arab nor from the Middle East, for refusing to drive the same truck.
Defendant moves to dismiss plaintiff's discrimination claims, arguing that his allegations are conclusory and that his failure to allege the race and national origin of his comparators is fatal.
A. Pleading Standard
The parties first disagree about the pleading standard applicable to employment discrimination claims. Plaintiff asserts that Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) applies, in which the Supreme Court held that a plaintiff need not plead each element of his or her prima facie case.
Defendant disagrees, arguing that Iqbal and Twombly abrogated Swierkiewicz because the Court in Swierkiewicz relied on the outdated notice pleading standard.
While defendant is correct that Iqbal and Twombly did away with the notice pleading standard, it does not necessarily follow that Swierkiewicz is bad law. In fact, the Sixth Circuit has expressly stated that Swierkiewicz remains good law, even after Iqbal and Twombly. James v. Hampton, 592 F. App'x 449, 460 (6th Cir. 2015). Therefore, a plaintiff need not plead each element of a prima facie case of discrimination to overcome a motion to dismiss. He or she must, however, "allege sufficient 'factual content' from which a court could 'draw the reasonable inference' " of discrimination. Id. at 461 (citing Iqbal, supra, 556 U.S. at 678, 129 S.Ct. 1937).
B. Substantive Evaluation of Claims
Turning to the substance of plaintiff's discrimination claims, the central question I must resolve is whether his allegations regarding his comparators are sufficient. I find that they are.
Defendant's primary issue with plaintiff's discrimination claims is that he does not provide the race or national origin of his comparators. Instead, he simply states that they are "not Arab" and "not of Middle Eastern descent." (Doc. 9, pgID 72).
Defendant has not pointed to any case convincing me this allegation is insufficient as a matter of law. Defendant primarily relies on Abdalla v. Tennessee Dep't of Corr., No. 2:20-CV-02041, 2021 WL 27305, at *7 (W.D. Tenn. Jan. 4, 2021), in which the court dismissed a plaintiff's complaint because his discrimination allegations, including about his comparator, were "conclusory."
But that case is distinguishable. There, the only allegation regarding plaintiff's comparator was: "Upon information and belief, Mr. Abdalla was replaced at work by a non-Egyptian, non-Muslim, and non-disabled individual under the age of forty." (Abdalla v. Tennessee Dep't of Corr., Case No. 2:20-CV-02041, Doc. 1). The court found that allegation conclusory. It did not, however, set forth a rule that in pleading facts about comparators, it is insufficient to allege that those comparators do not belong to plaintiff's protected class or classes.
Rather, the issue in Abdalla was the lack of factual context surrounding the plaintiff's allegation. There were no details regarding, for example, when the comparator was hired, his or her duties, or how plaintiff came to believe someone from out-side his protected class replaced him.
The plaintiff here, however, has provided the necessary factual context in discussing his comparators. He alleged not only that defendant treated non-Arab and non-Middle Eastern individuals differently than it treated him, but also, critically, that two specific individuals, who are not Arab or from the Middle East, complained about the unclean state of the truck in question, and defendant did not force them to drive the truck. Instead, defendant allowed them to wait for another truck to drive. These details distinguish plaintiff's allegations from the conclusory allegation in Abdalla.
In fact, the court in Abdalla emphasized that a complaint passes muster where a plaintiff "alleged specific instances where she was treated differently." Abdalla, supra, 2021 WL 27305 at *7. As I explained above, plaintiff has done so here.
Defendant's insistence that plaintiff provide more details about his comparators is not only unsupported by the law but also strikes me as unreasonable. It appears that plaintiff has identified his comparators to the extent he is able. He alleges they are not Arab, nor from the Middle East, meaning they do not belong to his relevant protected classes. A plaintiff may not always know with which race or national origin his or her comparators identify. That could be especially so in a case like this where plaintiff only worked for the defendant for about a month. Presumably, he did not know the other employees particularly well. Imposing a higher bar on plaintiffs would unfairly and improperly weed out legitimate claims of discrimination before the parties have the opportunity to engage in discovery. Only then can plaintiffs, in many cases, uncover all available details about their comparators.
Furthermore, returning to the key question at the motion to dismiss stage, whether the plaintiff "allege[d] sufficient 'factual content' from which a court could 'draw the reasonable inference' " of discrimination, I find that, in this case, he has. James, 592 F. App'x at 460. Allowing two other employees who refused to drive the unclean truck to wait for another while terminating plaintiff for the same conduct could indicate discrimination. It certainly pushes plaintiff's claims over the line from possible to plausible. See Iqbal, supra, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, supra, 550 U.S. at 557, 127 S.Ct. 1955) ("The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.").
Therefore, I deny defendant's motion to dismiss as to plaintiff's race and national origin discrimination claims.
Conclusion
It is, therefore, ORDERED THAT 1. Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 10) be, and the same hereby is, granted as to plaintiff's wrongful termination in violation of public policy claim (Count V); 2. Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 10) be, and the same hereby is, denied as to plaintiff's discrimination claims (Counts I-IV); and 3. The Clerk shall forthwith schedule a status/scheduling conference. So ordered.