[Cite as Fleming v. Shelton, 2020-Ohio-1387.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

JODI FLEMING,                                    :

                Plaintiff-Appellant,             :           No. 108660

                v.                               :

CHRISTOPHER M. SHELTON, ET AL., :

                Defendants-Appellees.            :



                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: April 9, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-19-913062


                                           Appearances:

                Jodi Fleming, pro se.

                Matthew R. Harris, for appellees.


ANITA LASTER MAYS, J.:

                  Plaintiff-appellant Jodi Fleming (“Fleming”) appeals the trial court’s

grant of defendants-appellees’ motion to dismiss for failure to state a claim upon

which relief may be granted pursuant to Civ.R. 12(B)(6). We affirm the trial court’s

judgment.
I. Background and Facts

              On March 27, 2019, Fleming filed a complaint against defendant-

appellees CWA International (“CWA”), CWA District #4, CWA Chapter 4309 (“CWA

4309”), Christopher M. Shelton, Monica Hogan, Linda Hinton, and Terez Woods

(collectively “appellees”). Fleming, a 53-year-old black female, charged that she was

subject to discriminatory acts by her employer due to her race and age under “Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000 et seq., and

Title III of the American with Disabilities Act.”1 Fleming said that she was forced to

take a disability leave of absence that “terminated her pension and medical

insurance.” As a result of appellees’ acts, Fleming was exposed to a hostile work

environment, was not granted reasonable accommodation, and suffered anxiety and

depression.

              Fleming said that after she was unable to work for one year due to

multiple surgeries, she was not provided with long-term disability or the company

accident and sickness plan coverage. CWA 4309, the local chapter that she also

worked with as a union mobilizer, did not assist her. Fleming reportedly filed a

complaint with the National Labor Relations Board (“NLRB”) but dismissed it after

the union agreed to pursue the action. CWA did not move forward, but Fleming was

able to file a complaint with the Equal Employment Opportunity Commission.




      1The proper citations are Title VII, 42 U.S.C. 2000e, Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. 623, and the Rehabilitation Act, 29 U.S.C. 794.
               The instant complaint charges violations of several federal laws:

(1) racial discrimination under the federal civil rights act; (2) age discrimination

under the federal Age Discrimination in Employment Act, 29 U.S.C. 621 (“ADEA”);

(3) retaliation for engaging in protecting activities; (4) violation of the federal

Rehabilitation Act, 29 U.S.C. 710, et seq. (“Rehabilitation Act”); and (5) hostile and

abusive work environment in violation of the ADEA and Rehabilitation Act. Fleming

prayed for a judgment in excess of $25,000 per claim and a range of legal and

equitable relief.

                On April 5, 2019, appellees moved to dismiss the motion for failure

to state a claim pursuant to Civ.R. 12(B)(6), failure to join a necessary party under

Civ.R. 19 and 12(B)(7) or, in the alternative, motion for a more definite statement

pursuant to Civ.R. 12(E) and dismissal of all defendants named in their individual

capacities. In summary, appellees contended Fleming did not name the proper

union entities and failed to include AT&T as a necessary party and, while conceding

that state courts have concurrent jurisdiction over the federal actions, claimed that

Fleming did not file within the applicable statutes of limitations.

               On May 2, 2019, Fleming opposed the motion. On May 6, 2019,

appellees moved to strike Fleming’s response as untimely and noncompliant with

the local rules. On May 8, 2019, appellees filed a motion to supplement, and

Fleming responded to the motion to strike. On May 16, 2019, Fleming responded to

the motion to supplement, and on May 21, 2019, appellees moved to strike Fleming’s

response to the supplemental motion.
               The trial court issued its judgment on May 23, 2019, that provided in

pertinent part that, after consideration of the various filings:

      A court may dismiss a motion pursuant to Ohio Civ.R. 12(B)(6) for
      failure to state a claim upon which relief may be granted when it
      appears beyond a doubt that plaintiff can prove no set of facts entitling
      them to relief. O’Brien v. Univ. Community Tenants Union, Inc., 42
      Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). The court finds that
      plaintiff can prove no set of facts entitling her to relief. Defendants’
      motion to dismiss pursuant to Civ.R. 12(B)(6) is well taken and is
      granted. Case is dismissed with prejudice pursuant to Civ. R. 12(B)(6).

 Journal entry No. 108834075 (May 23, 2019).

II. Assignment of Error

               Fleming assigns one error:

      The granting of summary judgment to Defendants was premature and
      invalid because discovery had not been conducted. Favorable
      information to the Plaintiff is likely to come out in the discovery
      process.

      A. Pro Se Appellant

               We recognize that Fleming is proceeding pro se, without the advice of

a licensed attorney. However, “[u]nder Ohio law, pro se litigants are held to the

same standard as all other litigants.” Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312,

2008-Ohio-3130, ¶ 29, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357,

363, 676 N.E.2d 171 (8th Dist.1996).

               We note that the appellate brief “fails to comply with a number of

appellate rules, but in the interest of justice, this court will, as best it can, address

the arguments raised herein.” In re R.L.H., 8th Dist. Cuyahoga No. 100327, 2014-

Ohio-3411, ¶ 9, fn. 3. It is true, “[h]owever, App.R. 12 and 16 provide this court with
the authority to disregard any assignment of error that does not conform to

pertinent appellate rules.” Id.

          B. Standard of Review

                  Fleming argues that summary judgment was inappropriate in this

case and Fleming’s standard of review applies to summary judgments that are

governed by Civ.R. 56. However, the judgment in this case was pursuant to

Civ.R. 12(B)(6).

                  An appellate court reviews a motion to dismiss under Civ.R. 12(B)(6)

as follows:

          Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de
          novo. A motion to dismiss for failure to state a claim upon which relief
          can be granted is procedural and tests the sufficiency of the complaint.
          Under a de novo analysis, we must accept all factual allegations of the
          complaint as true and all reasonable inferences must be drawn in favor
          of the nonmoving party.

(Citations omitted.) NorthPoint Props. v. Petticord, 179 Ohio App.3d 342, 2008-

Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.).

                  A trial court may grant a motion to dismiss for failure to state a claim

upon which relief can be granted where it appears “beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling her to relief.” Grey v.

Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th

Dist.).

          C. Discussion

                  Appellees maintain in their motion to dismiss that the employment

situation that Fleming attempts to litigate occurred during the 2013 through 2015
timeframe. Appellees also argue in a supplement to that motion that Fleming filed

a complaint in federal court that echoes the allegations in the instant case against

the same defendants in 2016, in Fleming v. Hogan, N.D.Ohio No. 1:16 CV 688, 2016

U.S. Dist. LEXIS 51650 (Apr. 18, 2016). A copy of the trial court’s entry is attached

as an appendix to the motion.

               Fleming’s filing in that action was also pro se:

       Pro se Plaintiff Jodi Fleming filed this action under Title VII, 42 U.S.C.
       § 2000e, the Age Discrimination in Employment Act (“ADEA”), 29
       U.S.C. § 623, and the Rehabilitation Act, 29 U.S.C. § 794, against
       Communication Workers of America (“CWA”) International employee
       Monica Hogan, CWA District #4 Vice President Linda Hinton, CWA
       Employee Terez Woods, CWA International and CWA District #4. In
       the Complaint, Plaintiff alleges the grievance she filed against her
       former employer, AT&T, was moved to the international branch of
       “CWA” and the Defendants did not keep her apprised of the status of
       her grievance. She does not specify the relief she seeks. * * *

       [Fleming] indicates that she is an African American female, over the
       age of forty, who is disabled. She states she was employed by AT&T “at
       the time of her disability leave of absence.” (ECF No. 1 at 2). She alleges
       she received a letter from Hinton stating AT&T would not arbitrate,
       [*2] but she does not specify the dispute in question. She states Hogan
       informed her that her grievance was moved to the international union.
       She claims the Defendants did not provide her with any information or
       communication regarding her case. She contends Woods accused her
       of signing the release of medical documentation. Plaintiff asserts
       claims under Title VII, the ADEA, and the Rehabilitation Act. Plaintiff
       also alleges AT&T discharged her because she was on medical leave for
       more than 52 weeks and because she filed a Worker’s Compensation
       claim. Plaintiff filed a separate action against AT&T for employment
       discrimination. See Fleming v. Tench, No. 1:16 CV 185 (N.D. Ohio filed
       Jan. 26, 2016). The claims against AT&T are not part of this action.

Id. at *1-2.

               The court determined that Fleming failed to set forth a plausible claim

of relief. The subsequent history of the opinion in that case lists several related cases
that are summarized in Fleming v. Ohio Bell Tel. Co., N.D.Ohio No. 1:19 CV 994,

2019 U.S. Dist. LEXIS 82893 (May 16, 2019).

      Plaintiff has filed five charges with the United States Equal
      Employment Opportunity Commission and six lawsuits in state and
      federal court pertaining to this incident. Her first lawsuit was filed in
      this federal court against Ohio Bell on January 26, 2016. See
      Fleming v. Tench, [N.D. Ohio] No. 1:16 CV 185 (Apr. 25, 2016)
      (Gaughan, J.). She voluntarily dismissed that case on April 25, 2016.

      Plaintiff filed her second lawsuit in this Court against her union and
      union officials complaining of her employment termination by Ohio
      Bell. See Fleming v. Hogan, [N.D. Ohio] No. 1:16 CV 688, 2016 U.S.
      Dist. LEXIS 51650 (Apr. 18, 2016) (Gaughan, J.). That action was
      dismissed on the merits under 28 U.S.C. § 1915(e).

      Ten days after her second lawsuit was dismissed, Plaintiff filed her
      third lawsuit. This one named Ohio Bell as the Defendant, but it was
      based on the same facts pertaining to her employment termination.
      See Fleming v. Ohio Bell Tel. Co., [N.D. Ohio] No. 1:17 CV 898 (June 14,
      2017) (Polster, J.). This lawsuit was dismissed on the merits in June
      2017. At that time, this Court recognized Plaintiff as a vexatious litigant
      and enjoined her from filing any new lawsuits without first seeking and
      obtaining leave of court. Id.

      Just over two months later, Plaintiff filed another lawsuit against Ohio
      Bell challenging her firing. See Fleming v. Ohio Bell Tel. Co., [N.D.
      Ohio] No. 1:17 CV 1815, 2018 U.S. Dist. LEXIS 104020 (June 21, 2018)
      (Boyko, J.). This time, Plaintiff retained an attorney and obtained leave
      to file the case. It was dismissed, however, on the grounds of res
      judicata. In the dismissal Order, Judge Boyko acknowledged this
      Court’s prior finding that Plaintiff was a vexatious litigant and
      addressed Ohio Bell’s request for monetary sanctions stating:

      Defendant contends that monetary sanctions are the only way to stop
      Plaintiff from engaging in vexatious litigation going forward. However,
      since the Court dismisses this action with prejudice, Plaintiff is barred
      from re-litigating this case a fifth time. Therefore, the Court declines to
      impose monetary sanctions on Plaintiff at this time. However, should
      Plaintiff file another lawsuit addressed by this Court’s imposition of
      conditions as stated in this Order, Plaintiff may be ordered to pay
      attorney’s fees and costs covering Defendant’s Motion to Dismiss in
      this case, as well as the new filing.
      Id.

      Undeterred, Plaintiff filed two more cases against her union and Ohio
      Bell in the Cuyahoga County Court of Common Pleas. Her fourth
      lawsuit, Fleming v. Shelton, [C.P.] No. CV-19-913062 (filed Mar. 27,
      2019) is still pending. Her fifth lawsuit began as Fleming v. AT&T
      Corp., [C.P.] No. CV-19-913317 (filed Apr. 2, 2019) and was removed as
      this case to federal court as this case.

Id. at *2-4 (May 16, 2019).

              There is no need to recreate the analytical wheel in this case. The

federal court, as in the other cases, granted the appellees’ motion to dismiss under

Fed.R.Civ.P. 12(B)(6).    Ohio courts look to federal law by analogy in analyzing

Civ.R. 12(B)(6). See generally Tuleta v. Med. Mut. of Ohio, 2014-Ohio-396, 6

N.E.3d 106 (8th Dist.).

              The federal court also ruled that res judicata applied. “[A] final

judgment on the merits of a claim precludes a party from bringing a subsequent

lawsuit on the same claim or from raising a new defense to defeat the prior

judgment.” Id. at * 6, citing Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

918 F.2d 658, 660 (6th Cir. 1990).

              The federal court concluded:

      All of these requirements are met in this case. Plaintiff received
      decisions on the merits of her claims against Ohio Bell in Fleming v.
      Ohio Bell Tel. Co., [N.D. Ohio] No. 1:17 CV 898 (June 14, 2017) (Polster,
      J.) and Fleming v. Ohio Bell Tel. Co., [N.D. Ohio] No. 1:17 CV 1815,
      2018 U.S. Dist. LEXIS 104020 (June 21, 2018) (Boyko, J.). In addition,
      she received a decision on the merits of her action against the union in
      Fleming v. Hogan, [N.D. Ohio] No. 1:16 CV 688, 2016 U.S. Dist. LEXIS
      51650 (Apr. 18, 2016) (Gaughan, J.). This current action is based on
      the same facts as her prior cases and her claims in this case could have
      been or were addressed in those prior actions. Plaintiff is therefore
      precluded from litigating this matter for a fifth time.
Id. at *7.

               The court also noted its “warnings to cease her vexatious and

harassing filings” and issued a fine. Finally, the court admonished:

       Plaintiff is permanently enjoined from filing additional documents in
       this case or in prior cases she initiated in this Court, and is reminded
       that she is permanently enjoined from filing any new action in either
       state or federal court, without seeking and obtaining leave of court as
       set forth in this Court’s prior Order.

Id. at *8-9. The federal opinion was issued on May 16, 2019. The instant case was

filed on March 27, 2019, almost three months prior to the federal opinion issued.

               As this court explained in its July 10, 2019 order denying appellees’

motion to dismiss the appeal due to Fleming’s failure to request leave from the

federal court and based on the federal court’s vexatious litigator declaration:

       Appellant has been declared a vexatious litigator by the federal court,
       but not the state court. ““[C]ivil actions filed in a federal court cannot
       be the predicate actions for declaring a person a ‘vexatious litigator’
       under R.C. 2323.52, that is not to say that they do not have any
       evidentiary relevance for determining ‘vexatious conduct’ as defined in
       R.C. [2323.52(A)(2)(a)], or to identify a ‘vexatious litigator’ as defined
       in R.C. [2323.52(A)(3)].”” Borger v. McErlane, 1st Dist. Hamilton
       No. C-010262, 2001-Ohio-4030. See also Huntington Natl. Bank v.
       [Pacific] Fin. Servs., 8th Dist. Cuyahoga No. 86822, 2006-Ohio-4486.
       Therefore, appellant was not required to request leave prior to filing the
       appeal. Appellees’ contention that the appeal is without merit goes to
       the merits of the appeal and is not grounds for dismissal. Res judicata
       is an affirmative defense and does not deprive the court of jurisdiction.
       See In re Power Co., 144 Ohio St.3d 1, 2015-Ohio-2056, ¶ 22 and
       therefore, is not grounds for a dismissal pursuant to motion.

Journal entry No. 109463469 (July 10, 2019).
               Based on our review of the record and the fact that the claims and

parties in this case mirror those of the other federal and state filings by Fleming, we

find that the trial court did not abuse its discretion.

               Fleming’s sole assignment of error is overruled.

III. Conclusion

               The trial court’s judgment is affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


________________________________
ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
OPINION


SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:

               I respectfully concur in judgment only. It is understandable how

Fleming confused the procedural standards in this current appeal. The defendants’

motion to dismiss was based on Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127

S.Ct. 1955, 167 L.Ed.2d 929 (2007), a federal standard of review expressly rejected
in Tuleta v. Med. Mut. of Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 31 (8th Dist.)

(holding that the Twombly line of cases cannot override 40 years of routine

standards under Ohio law). It is for this reason that we cannot rely on the federal

court’s decision to dismiss — its decision was based on the Twombly standard.

Further, the defendants’ motion to dismiss attempted to incorporate evidence

outside the pleadings that could not be considered under the Civ.R. 12(B)(6)

standard. Smith v. Estate of Knight, 10th Dist. Franklin No. 18AP-534, 2019-Ohio-

560, ¶ 7 (in order to consider evidence outside the complaint, the motion to dismiss

must be converted to a summary judgment motion and proceed under Civ.R. 56).

Although Fleming’s appellate arguments are incorrectly based on Civ.R. 56, the

blame is not entirely on her. Notwithstanding, nothing in the record demonstrates

that the trial court considered the inappropriately attached evidence, and Fleming

does not argue otherwise. App.R. 16(A)(7).

              The question before this court is whether a motion to dismiss was

appropriately granted under Civ.R. 12(B)(6), a matter we review de novo.

Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44,

¶ 5. Despite the defendants’ own procedural missteps, in their motion to dismiss,

defendants also claimed that Fleming failed to state a claim upon which relief could

be granted because the only allegations of discrimination pertained to Fleming’s

employer and not the labor union or its employees (the only defendants in the

action). The only allegations of misconduct against the defendants were based on

their failure to pursue a grievance, with no allegations of discriminatory acts by the
defendant labor union or its employees. For this reason, I agree with the decision to

affirm.
