[Cite as Martin v. Block Communications, Inc., 2017-Ohio-1474.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


James Martin                                              Court of Appeals No. L-16-1213

        Appellant                                         Trial Court No. CI0201602367

v.

Block Communications, Inc., et al.                        DECISION AND JUDGMENT

        Appellees                                         Decided: April 21, 2017

                                                *****

        James Martin, pro se.

        Mathew B. Beredo and Keith Wilkowski, for appellees.

                                                *****

        MAYLE, J.

        {¶ 1} Plaintiff-appellant, James Martin, appeals the September 13, 2016 judgment

of the Lucas County Court of Common Pleas denying him leave to file an amended

complaint and granting defendants-appellees’, Block Communications, Inc. and Buckeye
Cablevision, Inc., Civ.R. 12(B)(6) motion to dismiss. For the following reasons, we

affirm the trial court’s judgment.

                                     I. Background

       {¶ 2} Martin is a former employee of Block Communications and Buckeye

Cablevision (collectively “Block”). On April 15, 2016, he filed a pro se complaint in the

Lucas County Court of Common Pleas alleging that Block committed discriminatory

employment practices in violation of R.C. 4112.02 and 4112.05 and 42 U.S.C. 1981 and

1983. To support his claims Martin alleged the following facts in his complaint.

       {¶ 3} Martin began working part-time as a technical support specialist for Block in

October 2014. During that time he also attended classes at Owens Community College

and was an active political candidate and member of the Lucas County Republican Party.

Martin claims to have told Block about his ongoing schooling and political activities

during the hiring process. In February 2015, Block laid off about half of its technical

support specialists and moved Martin into a full-time position to fill staffing gaps. Other

employees were offered severance, early retirement, relocation, or layoff with the option

to be rehired.

       {¶ 4} Martin then began working a full-time schedule that required him to work

six days a week, Monday through Friday from 5:00 p.m. to 11:00 p.m. and Saturday from

noon to 11:30 p.m., with the potential for mandatory overtime on Sundays. Block held a

schedule bid in April 2015. Employees were able to bid on their preferred shifts;

schedules were then awarded based on performance and seniority. After the bid Martin




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was moved to a four-day work week with 10-hour shifts, Wednesday through Saturday

from noon to 10:30 p.m. with the potential for mandatory overtime.

       {¶ 5} On April 28, 2015, Martin received a semi-annual performance evaluation.

Although the evaluation contained positive comments about Martin’s job performance,

his supervisor also noted that Martin was late to work six times in his first six months of

employment. His supervisor warned him that “[he] does need to make sure to arrive to

work on time each shift.” One month later, Martin failed to appear for a scheduled shift

and was disciplined under Block’s progressive discipline policy. At that time, he

received an “Oral Reminder,” which is Step 1 of Block’s Customer Operations

Disciplinary Practice.

       {¶ 6} Block held another schedule bid in July 2015. Martin’s disciplinary record

left him ineligible to choose from many of the available shifts. He claimed that the shifts

from which he could choose were “equally unfavorable” to him. In August 2015 he was

moved to a five-day work week with eight-hour shifts, Thursday through Saturday from

3:00 p.m. to 11:30 p.m.

       {¶ 7} Martin was unhappy with his new schedule and requested that management

either return him to a four-day work schedule or allow him to go back to working part-

time so he could finish his college classes. His direct supervisor denied the request, but

stated that he could resign and then return when he finished his studies. Martin was not

interested in this option and appealed his supervisor’s decision to the Customer

Operations Manager. The manager denied Martin’s appeal, stating that Block could not




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honor Martin’s request because the department was understaffed. Martin’s schedule

remained the same.

       {¶ 8} Martin’s tardiness problems continued in August and September 2015,

leading to further disciplinary actions. Block gave Martin a “Written Reminder,” Step 2

of the disciplinary process, and placed Martin on a performance improvement plan

through the end of October. He claimed that a supervisor told him the performance

improvement plan was “pointless” because it dealt with tardiness issues rather than job

performance issues. On or about October 15, 2015, Martin again asked to be moved to a

part-time schedule. Block denied his request even though it had recruited new technical

support employees by this time. On November 17, 2015, Martin arrived over six hours

late for a shift, allegedly because he was unaware that his regular work hours had been

changed. Block then escalated its disciplinary measures to Step 3 of its policy and issued

Martin a “Written Warning.”

       {¶ 9} During the last week of December 2015, Martin requested personal leave to

visit his sick step-grandmother. Block denied the request, telling Martin he would need a

doctor’s note to take personal leave. Martin claimed he could not obtain a doctor’s note

because his step-grandmother lived in Oklahoma. Martin also alleged that he had a

sufficient personal leave balance to cover the requested time off.

       {¶ 10} After this incident, Block requested that Martin meet with the human

resources department. On January 5, 2016, Martin met with a Block human resources

representative and a technical support supervisor. At that meeting, Block asked Martin to




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resign from the company. When he declined, Block terminated his employment effective

January 6, 2016. Martin alleged that he was not paid for hours worked on December 29,

2015, and did not receive payment for his unused vacation time. Martin was also denied

unemployment benefits because Block claimed to have terminated him with just cause.

       {¶ 11} On April 15, 2016, Martin filed his initial complaint against Block,

claiming that Block unlawfully discriminated against him in violation of R.C. 4112.02

and 4112.05, and violated his equal protection rights under 42 U.S.C. 1981 and his

constitutional rights under 42 U.S.C. 1983. He alleged that he was aware of current

Block employees who had requested “more accommodating” schedules and were not

denied. He also alleged that Block’s timekeeping records were inaccurate. Martin

further claimed that Block used him as an example to exert psychological control over the

rest of the technical support specialists. He blamed Block for loss of enjoyment of life,

loss of personal and professional opportunities, and mental anguish. Martin claimed to

have suffered damages by losing promotion opportunities, wages and earnings, and

educational and professional advancement.

       {¶ 12} On May 13, 2016, Block filed a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief can be granted. It argued that the R.C. 4112.02

and 42 U.S.C. 1981 claims both failed because Martin did not allege that he is a member

of a protected class or that Block’s action were motivated by Martin’s membership in a

protected class; his R.C. 4112.05 claim failed because the statute relates to filing a case

with the Ohio Civil Rights Commission, not a common pleas court; and his 42 U.S.C.




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1983 claim failed because he did not allege that Block was a state actor or acting under

color of state law. On May 18, 2016, Martin filed a “Motion to Strike and Statement of

Reasons for Opposing Defendant’s [sic] Motion to Dismiss Pursuant to Civ. R [sic]

12(B)(6).” Block filed its reply on May 27, 2016.

       {¶ 13} Martin then filed a motion for leave to file an amended complaint on

June 13, 2016, which was 31 days after Block filed its Civ.R. 12(B)(6) motion. He did

not file the proposed amended complaint with his motion, but he submitted a copy of the

unfiled pleading to the courtroom. Martin removed the federal law claims and the claim

under R.C. 4112.05 from the proposed amended complaint, but retained his claim under

R.C. 4112.02. The proposed amended complaint also contained the following additional

factual allegations: Martin is a white male; Block allowed another technical support

specialist—an “Arabic male”—to remain on a part-time schedule at an unspecified time

during Block’s restructuring; and Block informed Martin at the beginning of his

performance improvement plan in October 2015 that he would be terminated if he was

late for work again. The proposed amended complaint also alleged that the performance

improvement plan was retaliatory and discriminatory because it “further complicated

[his] position.” Finally, Martin amended his damages to include loss of credit, loss of

education, back pay, front pay, emotional stress, loss of enjoyment of life, suffering, and

humiliation.

       {¶ 14} On July 14, 2016, while the motion for leave to amend was pending,

Martin filed a second memorandum in opposition to Block’s Civ.R. 12(B)(6) motion to




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dismiss. In it he argued that Block’s motion should be denied because the proposed

amended complaint replaced the original complaint and met the requirements for

pleading an unlawful discriminatory acts claim. Block filed another brief in support of its

motion on July 20, 2016.

       {¶ 15} On August 17, 2016, the trial court filed an order related to Martin’s

motion for leave to amend. It stated that “the attached copy of [Martin’s] proposed

Amended Complaint shall be filed with the Motion for Leave to File an Amended

Complaint as an exhibit, deemed submitted as of June 13, 2016, and held until ruling on

[Martin’s] Motion for Leave to File an Amended Complaint.” Martin, however, never

filed the proposed amended complaint or otherwise placed it in the record.

       {¶ 16} The trial court issued its opinion and judgment entry on September 13,

2016. It found that Martin failed to amend his complaint within 28 days after Block filed

its Civ.R. 12(B)(6) motion to dismiss and, therefore, Martin could not amend his

complaint without leave of court under Civ.R. 15(A). The court then denied leave to

amend after finding that the proposed amended complaint would not cure the pleading

deficiencies of the original complaint. With leave to amend denied, the only pleading

before the trial court was the original complaint that was the subject of Block’s Civ.R.

12(B)(6) motion to dismiss. The court granted Block’s motion to dismiss, finding that

Martin failed to allege facts supporting each element of his discrimination claims. Martin

now appeals, setting forth two assignments of error:




7.
              FIRST ASSIGNMENT OF ERROR:

              The trial court committed prejudicial error by denying Appellants’

       [sic] motion for leave to file first amended complaint based upon its

       opinion that the amended complaint lacked sufficient operative facts to

       support an unlawful discriminatory practice claim and that the filing were

       [sic] untimely and futile.

              SECOND ASSIGNMENT OF ERROR:

              The trial court committed prejudicial error by granting Defendant’s

       [sic] motion to dismiss based upon its opinion that Plaintiff’s amended

       complaint did not address the deficiencies contested in the original

       complaint.

                                    II. Law and Analysis

                           A. Leave to Amend the Complaint

       {¶ 17} Martin first argues that the trial court erred in finding that he was not

entitled to amend his complaint as a matter of course and in denying his motion for leave

to amend on the basis that the amendment was futile. Block contends that Martin filed

his motion for leave to amend out of time and, therefore, the trial court correctly found

Martin was not entitled to amend his complaint as a matter of course. Block also argues

that the trial court correctly denied Martin’s motion for leave to amend because the

amendment was futile. We address each of these arguments in turn.




8.
                            1. Amendment as a Matter of Course

       {¶ 18} Under Civ.R. 15(A), a party may amend a pleading to which a responsive

pleading is required once as a matter of course within 28 days after service of the

responsive pleading or 28 days after service of a motion under Civ.R. 12(B), (E), or (F),

whichever is earlier. This right is absolute. Taylor v. Academy Iron & Metal Co., 36

Ohio St.3d 149, 156, 522 N.E.2d 464 (1988) (decided under former analogous section);

and see Schisler v. Columbus Med. Equip., 10th Dist. Franklin No. 15AP-551, 2016-

Ohio-3302, ¶ 23; see also Han v. Univ. of Dayton, 2d Dist. Montgomery No. 26343,

2015-Ohio-346, 28 N.E.3d 547, ¶ 58. Any other amendments require the consent of the

opposing party or leave of court. Civ.R. 15(A). “The court shall freely give leave when

justice so requires.” Id.

       {¶ 19} Martin argues that he had a right to amend his complaint because Block

had not yet filed an answer. This was true under a prior version of Civ.R. 15(A) (Former

Civ.R. 15(A) stated, “[a] party may amend his pleading once as a matter of course at any

time before a responsive pleading is served * * *.”). But this rule was amended in 2013

to allow a party to amend its pleading without leave of court only until the earlier of 28

days after service of a responsive pleading or 28 days after service of a Civ.R. 12 motion.

2013 Staff Note, Civ.R. 15. A party has an absolute right to amend his pleading during

the applicable 28-day period by filing an amended pleading.

       {¶ 20} In addition, under Civ.R. 6(D), “[w]henever a party has the right or is

required to take some act * * * within a prescribed period after the service of a notice or




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other document upon that party and the notice or paper is served upon that party by mail

* * * three days shall be added to the prescribed period.” Thus, when a party is served

with a Civ.R. 12 motion by mail, that party has three days beyond Civ.R. 15(A)’s

prescribed 28 days—for a total of 31 days—within which to amend a pleading without

leave of court.

       {¶ 21} Block served its Civ.R. 12(B)(6) motion to dismiss by mail on May 13,

2016. Martin therefore had a right to amend his complaint by June 13, 2016—which was

28 days after service (Civ.R. 15(A)) plus an additional three days because Block served

its Civ.R.12 motion by mail (Civ.R. 6(D)). Although Martin filed a “Motion for Leave to

File an Amended Complaint” on June 13, 2016, he did not file the amended complaint on

that date. Indeed, as the trial court recognized in its opinion and judgment entry, Martin

never filed the amended complaint or otherwise placed a copy of the pleading in the

record. Because Martin did not file his amended complaint on June 13, 2016, he did not

amend his pleading within the prescribed period for amendments “as a matter of course.”1

       {¶ 22} The trial court therefore did not err in finding that leave of court was

required for Martin to amend his complaint.



1
  We note that Martin, as a pro se litigant, is bound by the same rules and procedures as
parties who are represented by counsel. Kenwood Gardens Assn., LLC v. Shorter, 6th
Dist. Lucas No. L-10-1315, 2011-Ohio-4135, ¶ 8. Though the court may afford a pro se
litigant some leeway by liberally construing his pleadings, Martin does not have any
greater rights than a represented party and must bear the consequences of his mistakes.
HSBC Bank United States NA v. Beins, 6th Dist. Lucas No. L-13-1067, 2014-Ohio-56,
¶ 7.




10.
                            2. Amendment by Leave of Court

       {¶ 23} Martin next argues that the trial court erred in denying his motion for leave

to amend because, contrary to the court’s finding, his proposed amended complaint

corrected the pleading deficiencies of the original complaint. Martin argues that the

proposed amended complaint alleges a prima facie case for employment discrimination

under R.C. 4112.02 and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed.2d. 668 (1973), a case from the Supreme Court of the United States that

lays out a four-part test for proving an indirect case of employment discrimination. In

response, Block argues that the trial court properly exercised its discretion in denying the

motion for leave to amend because the proposed amended complaint fails to satisfy the

McDonnell Douglas elements, as modified for a claim of reverse racial discrimination,

and also lacks operative facts to support an inference of discriminatory intent as required

by R.C. 4112.02(A).

       {¶ 24} Martin’s proposed amended complaint alleges a single claim against Block

for unlawful discrimination under R.C. 4112.02(A) and 4112.99. Under R.C.

4112.02(A), it is an “unlawful discriminatory practice” for an employer

       because of the race, color, religion, sex, military status, national origin,

       disability, age, or ancestry of any person, to discharge without just cause, to

       refuse to hire, or otherwise to discriminate against that person with respect

       to hire, tenure, terms, conditions, or privileges of employment, or any

       matter directly or indirectly related to employment.




11.
A party alleging an “unlawful discriminatory practice” under R.C. 4112.02 may seek

damages, injunctive relief, and any other appropriate relief through a civil action under

R.C. 4112.99.

       {¶ 25} Ohio courts hold that federal case law interpreting Title VII of the Civil

Rights Act of 1964 is generally applicable to state-law discrimination claims under R.C.

Chapter 4112. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights

Comm., 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981), citing Republic Steel v. Ohio

Civ. Rights Comm., 44 Ohio St.2d 178, 339 N.E.2d 658 (1975) and Weiner v. Cuyahoga

Community College Dist., 19 Ohio St.2d 35, 249 N.E.2d 907 (1969). Under Title VII, an

employee must demonstrate that an adverse employment action was causally linked to

discriminatory intent. The ultimate inquiry is “whether the defendant intentionally

discriminated against the plaintiff.” USPS Bd. of Governors v. Aikens, 460 U.S. 711,

715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

       {¶ 26} In rare cases, an employee may establish discriminatory intent through

direct evidence that “the employer more likely than not was motivated by discriminatory

intent.” Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 587, 664 N.E.2d 1272 (1996). Direct

evidence is found, for instance, where an employer’s policy is discriminatory on its face

or where a statement by an employer directly shows there is a discriminatory motive.

Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir.1998) (“Such [direct] evidence

would take the form, for example, of an employer telling an employee, ‘I fired you




12.
because you are disabled.’”); Schlett v. Avco Fin. Servs., Inc., 950 F.Supp. 823, 828

(N.D.Ohio 1996).

       {¶ 27} Absent direct evidence of discriminatory intent, an employee alleging a

violation of R.C. 4112.02 has the burden to establish a prima facie case of discrimination

under a four-part test that was first articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d. 668. Plumbers & Steamfitters at 197 (“McDonnell

established a flexible formula to ferret out impermissible discrimination in the hiring,

firing, promoting, and demoting of employees”). Pursuant to the McDonnell Douglas

test, as adopted in Ohio, a prima facie case of discrimination under R.C. 4112.02 requires

allegations that (1) the plaintiff is a member of a statutorily-protected class; (2) the

plaintiff was discharged or otherwise suffered an adverse employment action; (3) the

plaintiff was qualified for the position; and (4) the plaintiff was replaced by, or his

removal permitted the retention of, a person outside the protected class. Coryell v. Bank

One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, 803 N.E.2d 781, ¶ 9; Brogan v.

Family Video Movie Club, Inc., 6th Dist. Lucas No. L-13-1283, 2015-Ohio-70, ¶ 16.

       {¶ 28} While these are the general requirements of a discrimination claim, Ohio

courts apply a modified version of the McDonnell Douglas test in cases of “reverse

discrimination”—i.e., where a member of a dominant group claims discrimination based

on race or sex. In such cases, the first and fourth prongs are altered; the plaintiff must

make a prima facie showing that (1) background circumstances support the inference that

plaintiff’s employer was the unusual employer who discriminated against non-minority




13.
employees, (2) the plaintiff was discharged or otherwise suffered an adverse employment

action, (3) the plaintiff was qualified for the position, and (4) the plaintiff was treated

disparately from similarly-situated minority employees. See, e.g., Pohmer v. JPMorgan

Chase Bank N.A., 10th Dist. Franklin No. 14AP-429, 2015-Ohio-1229, ¶ 32; Horsley v.

Burton, 4th Dist. Scioto No. 10CA3356, 2010-Ohio-6315, ¶ 75; Mitchell v. Lemmie, 2d

Dist. Montgomery No. 21511, 2007-Ohio-5757, ¶ 122.

       {¶ 29} The McDonnell Douglas test, however, is an evidentiary—rather than a

pleading—standard. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152

L.Ed.2d 1 (2002); Coryell at ¶ 25 (expressly adopting Swierkiewicz). This is because

discovery may unearth direct evidence of discriminatory intent, thereby making the

McDonnell Douglas test—which is applicable only in the absence of such direct

evidence—wholly irrelevant to the case. “It thus seems incongruous to require a

plaintiff, in order to survive a motion to dismiss, to plead more facts than he may

ultimately need to prove to succeed on the merits * * *.” Swierkiewicz at 511-512. The

plaintiff, therefore, does not need to plead facts sufficient to establish each of the

McDonnell Douglas elements to survive a Civ.R. 12(B)(6) motion to dismiss; the

plaintiff need only plead “a short and plain statement of the claim” under Civ.R. 8(A).

To constitute fair notice under Ohio’s liberal pleading rules, “the complaint must still

allege sufficient underlying facts that relate to and support the alleged claim, and may not

simply state legal conclusions.” Gonzalez v. Posner, 6th Dist. Fulton No. F-09-017,

2010-Ohio-2117, ¶ 11.




14.
       {¶ 30} The matter before the trial court was not a Civ.R. 12(B)(6) motion to

dismiss the amended complaint but, rather, a motion for leave to amend under Civ.R.

15(A). While leave to amend should be freely given “when justice so requires,” whether

to grant leave to amend the pleadings lies within the sound discretion of the trial court

and will not be reversed absent an abuse of that discretion. Delta Fuels, Inc. v. Consol.

Environmental Servs., 6th Dist. Lucas No. L-11-1054, 2012-Ohio-2227, 969 N.E.2d 800,

¶ 45. Abuse of discretion implies that the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610,

665 N.E.2d 200 (1996). “Where a plaintiff fails to make a prima facie showing of

support for new matters sought to be pleaded, a trial court acts within its discretion to

deny a motion to amend the pleading.” Wilmington Steel, 60 Ohio St.3d 120, 573 N.E.2d

622, at syllabus.

       {¶ 31} The issue on appeal is therefore whether Martin made a prima facie

showing of support for the new matters sought to be pleaded—i.e., a single claim for

employment discrimination under R.C. 4112.02(A). This “prima facie showing” does not

refer to the McDonnell Douglas elements of a circumstantial case of employment

discrimination; it refers to whether the proposed amended complaint contains “sufficient

underlying facts that relate to and support the alleged claim.” Gonzalez at ¶ 11.

       {¶ 32} In Ohio, a plaintiff asserting a claim for employment discrimination must

allege facts that, if true, would establish that the employer somehow “discriminate[d]

against” the plaintiff by discharging him without just cause, refusing to hire him, or




15.
taking some other adverse employment action, and that the employer did so “because of

race, color, religion, sex, military status, national origin, disability, age, or ancestry.”

(Emphasis added). R.C. 4112.02(A). In other words, a complaint must contain factual

allegations supporting two critical elements—adverse employment action and

discriminatory intent—to state a claim under R.C. 4112.02(A). Where a plaintiff claims

racial discrimination, the complaint must contain operative facts to support the

conclusion that the employer took the adverse employment actions because of the

plaintiff’s race. Morrissette v. DFS Servs., LLC, 10th Dist. Franklin No. 10AP-633,

2011-Ohio-2369, ¶ 26 (affirming trial court’s dismissal of plaintiff’s reverse race

discrimination claims because “[w]ithout operative facts to support the statement that

defendants considered his race in deciding to fire him, the statement amounts to an

unsupported conclusion and is insufficient to withstand a motion to dismiss”).

       {¶ 33} Here, the proposed amended complaint alleges that Martin is a white male

and suffered several adverse employment actions: Block refused to honor Martin’s

requests to move from a full-time schedule to a part-time schedule, Block refused to

allow Martin to use personal time to visit his sick step-grandmother without a doctor’s

note, Block disciplined Martin for repeated tardiness and attendance issues, and Block

terminated Martin’s employment.

       {¶ 34} The proposed amended complaint does not, however, contain any operative

facts to suggest that Block unlawfully considered Martin’s race when it refused his

scheduling requests, disciplined him, or terminated him. Although Martin alleges that an




16.
Arab co-worker was “allowed to maintain part-time status” through Block’s

restructuring, Martin does not allege that he made a similar request that was denied.

Indeed, Martin does not claim that he ever asked to maintain his part-time status when the

restructuring began. Martin alleges that he made two requests to be moved from a full-

time to part-time schedule and one request to use personal leave to visit a sick relative,

which were all denied. Notably, all of Martin’s requests for scheduling adjustments

occurred after Block began disciplinary action against him for ongoing tardiness and

attendance issues. Martin does not claim that Block approved any similar scheduling

requests by any minority employees under similar employment conditions.

       {¶ 35} Also, while Martin alleges that he was disciplined according to Block’s

written policies, he does not claim that any minority employees were disciplined less

often or less harshly or that Block ignored its written policy when disciplining minority

employees. Compare Jackson v. Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-

5799, 863 N.E.2d 189, ¶ 7 (reversing Civ.R. 12(B)(6) dismissal of claim for race

discrimination under R.C. 4112.02(A) where the plaintiff alleged that his employer

“improperly terminated [him] for medical absences in excess of company policy, while

allowing white employees to take non-penalized leave under the same conditions”). The

proposed amended complaint simply does not contain any operative facts to support an

inference that Block’s actions were motivated by discriminatory intent.




17.
         {¶ 36} Given that Martin failed to make a prima facie showing of support for his

employment-discrimination claim, the trial court did not abuse its discretion by denying

leave to amend. Martin’s first assignment of error is not well-taken.

                           B. Civ.R. 12(B)(6) Motion to Dismiss

         {¶ 37} In Martin’s second assignment of error he contends that the trial court erred

by granting Block’s Civ.R. 12(B)(6) motion to dismiss his original complaint. But

Martin does not argue that the Civ.R. 12(B)(6) ruling was incorrect on its merits. He

argues that Block’s motion to dismiss was rendered moot by his amended complaint,

which he claims was “neither futile nor untimely” and “address[ed] the deficiencies

contested in the original complaint.”

         {¶ 38} But, as already discussed, Martin failed to file the amended complaint

within the time allowed for amendment as a matter of course, and Martin’s motion for

leave to amend was properly denied by the trial court because the amended complaint

failed to state a claim for discrimination pursuant to R.C. 4112.02(A). The only pleading

before the trial court was Martin’s original complaint, which was the subject of Block’s

Civ.R. 12(B)(6) motion to dismiss. Thus, the trial court did not err by considering, and

ultimately granting, Block’s motion to dismiss the original complaint.

         {¶ 39} For these reasons, we find Martin’s second assignment of error not well-

taken.




18.
                                     III. Conclusion

       {¶ 40} The September 13, 2016 judgment of the Lucas County Court of Common

Pleas is affirmed. Martin is ordered to pay the costs of this appeal under App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




19.
