                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0357n.06

                                        Case No. 18-3011

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Jul 20, 2018
KEVIN JONES, et al.,                                )                   DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiffs-Appellants,                       )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
NATURAL ESSENTIALS, INC.,                           )       OHIO
                                                    )
       Defendant-Appellee.                          )




BEFORE: NORRIS, DONALD, and BUSH, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Plaintiffs-Appellants were terminated

from their jobs at Natural Essentials, Inc. (“Natural Essentials”) in September 2013. In January

2016, Plaintiffs brought suit against Natural Essentials in federal court, asserting two federal

claims under the Americans with Disabilities Act (“ADA”) and three state law claims under Ohio

law. Natural Essentials moved to dismiss on two primary grounds: Plaintiffs failed to exhaust

their administrative remedies under the ADA, and Plaintiffs also failed to state a claim upon which

relief could be granted.    The district court granted Natural Essential’s motion to dismiss,

dismissing the federal claims with prejudice and declining to exercise supplemental jurisdiction

over the state law claims. Plaintiffs moved for reconsideration, which the district court denied.

For the reasons below, we AFFIRM.
Case No. 18-3011
Kevin Jones, et al. v. Natural Essentials, Inc.
                                                  I.

        Natural Essentials is a family-owned corporation based in Ohio that manufactures and

distributes cosmetics and other personal care products. Plaintiffs Kevin Jones (“Kevin”), Teresa

Jones (“Teresa”), and Rob Lovejoy (“Lovejoy”) are citizens of Ohio and former Natural Essentials

employees, all hired in August 2013.

        The events giving rise to this case began on September 15, 2013, when Teresa fell while

attempting to avoid being stung by bees on Defendant’s property during a paid work break. Teresa

sustained injuries to her right shoulder, which caused “immediate severe, debilitating and ongoing

right shoulder pain.” Despite her injuries, Teresa returned to work and completed her shift. Id.

On that same day, Lovejoy texted Teresa on the cell phone of a coworker, Alice Worman, that

Teresa could file a workers’ compensation claim for her injuries. Teresa did so on September 17,

2013.

        In their complaint, Plaintiffs alleged that Teresa promptly reported her fall to her immediate

supervisor, Faith Owens (“Owens”), who informed the owner of Natural Essentials, Gary L.

Pellegrino (“Pellegrino”), “that there was ‘no incident’ and that [Teresa’s fall] ‘wasn’t a big deal.’”

According to Plaintiffs, Owens also told Pellegrino that “everything was fine.” Plaintiffs allege

that, in response to the injury report, Pellegrino instructed Owens to retroactively terminate Teresa

on September 14, 2013. Plaintiffs allege that Teresa was paid as an independent contractor for her

work on September 15, 2013. Plaintiffs also allege that Teresa and her son, Kevin, were both

terminated on September 16, 2013. According to Plaintiffs, Pellegrino claimed he had already

decided to terminate both on September 14, 2016, though neither had any disciplinary or other

work issues.




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Kevin Jones, et al. v. Natural Essentials, Inc.
       After learning that Teresa and Kevin were terminated, Lovejoy texted Teresa again on

Worman’s cell phone, suggesting that Teresa and her son should sue Natural Essentials. Plaintiffs

claim that Worman disclosed the messages to Owens, who shared them with Pellegrino, which

resulted in Lovejoy’s termination on September 17, 2013.

       On January 14, 2016, Plaintiffs brought suit against Natural Essentials, asserting two

federal claims under the ADA and three state law claims under Ohio law. In their ADA claims,

detailed in Counts I and II, Plaintiffs alleged that Teresa qualified as disabled under Title I and

was terminated in violation of the same, and that she was discriminated against and retaliated

against in violation of Titles III and V. Plaintiffs alleged identical violations as to Kevin and

Lovejoy based on their association with Teresa and encouragement to her to assert her federal

rights. On March 16, 2016, Natural Essentials moved to dismiss for failure to state a claim as to

each count. Natural Essentials first argued that Plaintiffs failed to exhaust their administrative

remedies as required to bring employment discrimination claims under Titles I and V of the ADA.

As to their claims under Titles III and V, Natural Essentials argued that Plaintiffs alleged no facts

supporting a plausible public accommodations claim, and moreover, that any such claim would

nevertheless be barred by the applicable two-year statute of limitations. The district court granted

Natural Essentials’ motion to dismiss as to the federal claims and dismissed them with prejudice.

The court dismissed the state law claims without prejudice.

       Plaintiffs moved to alter or amend the judgment under Federal Civil Rule 59(e) on April

24, 2017. In the same motion, Plaintiffs also moved to file an amended complaint. Plaintiffs first

argued that administrative requirements as to their ADA claims were waivable and subject to

equitable tolling, and that application of either doctrine was “necessary to avoid manifest

injustice.” Plaintiffs next argued that Teresa had “at least inferentially stated a prima facie case of



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Case No. 18-3011
Kevin Jones, et al. v. Natural Essentials, Inc.
disability discrimination.” Plaintiffs argued that they pleaded sufficient facts to demonstrate that

Natural Essentials “knew or had reason to know of [Teresa’s] actual or perceived disability.”

Finally, Plaintiffs argued that the dismissal of their ADA claims should have been without

prejudice. The district court denied the motion, holding that Plaintiffs merely repeated their

argument about waiver, did not establish that the Court erred in concluding that they failed to

demonstrate that they were entitled to equitable tolling of the statutory period to file an Equal

Employment Opportunity Commission (“EEOC”) charge or estoppel, and failed to allege facts

from which the fourth element of a prima facie case of disability discrimination could be

reasonably inferred.

       As to the alternative requests for leave to file an amended complaint or dismiss Counts I

and II without prejudice, the court held that Plaintiffs’ “threadbare request for leave to amend”

failed to satisfy applicable standards and likewise denied Plaintiffs’ request for dismissal of their

claims without prejudice. Plaintiffs timely appealed the district court orders dismissing their

claims and denying their motion for reconsideration.

                                                  II.

       We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6).

Crosby v. Univ. of Ky., 863 F.3d 545, 551 (6th Cir. 2017). In doing so, we “accept the plaintiff’s

factual allegations as true, and we view the complaint in the light most favorable to the plaintiff,

but we are not required to accept legal conclusions or unwarranted factual inferences as true.” Id.

at 552 (internal citation omitted). We review the application or rejection of equitable tolling or

estoppel for abuse of discretion. King v. Henderson, 230 F.3d 1358, 2000 WL 1478360, at *5 (6th

Cir. 2000) (per curiam) (unpublished table disposition) (citing Truitt v. Cty. of Wayne, 148 F.3d

644, 648 (6th Cir.1998)). “A district court abuses its discretion when it relies on clearly erroneous



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Case No. 18-3011
Kevin Jones, et al. v. Natural Essentials, Inc.
findings of fact, or when it improperly applies the law or uses an erroneous legal standard.”

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)

(quoting Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995)) (internal quotation marks

and alteration omitted).

         Where the district court’s denial of a motion to alter or amend is not based upon erroneous

legal doctrine, we review for abuse of discretion. Morales v. Am. Honda Motor Co., 151 F.3d 500,

518 (6th Cir. 1998). We also review the district court’s denial of a post-judgment motion for leave

to amend a complaint filed in conjunction with a Rule 59(e) motion for abuse of discretion. Leisure

Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615-16 (6th Cir. 2010).

    A. Failure to Exhaust Under the Title I and V of the ADA1

         A plaintiff seeking to bring employment discrimination claims under the ADA must first

exhaust administrative remedies, and failure to properly exhaust is an appropriate basis for

dismissal of an ADA action. Mayers v. Sedgwick Claims Mgmt. Servs., Inc., 101 F. App’x 591,

593 (6th Cir. 2004) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). To properly

exhaust administrative remedies under the ADA, a plaintiff must file a charge of discrimination

with the EEOC within 300 days of the alleged discrimination. Parry v. Mohawk Motors of Mich.,

Inc., 236 F.3d 299, 309 (6th Cir. 2000) (citing 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e–5(e)(1)).

A plaintiff must then obtain a right-to-sue letter from the EEOC before she can bring suit under

the ADA. Id.




1
  To the extent the Title V claims are predicated on Title I, we include those claims in this analysis. We also note that,
Plaintiffs have not challenged the district court’s finding on their claims brought under Title III. The district court
dismissed the Title III claims (and Title V to the extent they were predicated on Title III) for failure to allege facts that
establish a plausible Title III claim. On appeal, Plaintiffs argue only that those claims were not barred by a statute of
limitations. Accordingly, we deem Plaintiffs’ appeal of the Title III claims waived.

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Case No. 18-3011
Kevin Jones, et al. v. Natural Essentials, Inc.
        Plaintiffs argue at length that the failure to obtain a right-to-sue letter is a condition

precedent, not a jurisdictional defect, which can be waived by the parties or the court. But as the

district court noted, it is not simply that Plaintiffs did not have a right-to-sue letter—Plaintiffs

failed to satisfy the first step of administrative exhaustion because Teresa’s EEOC charge, filed on

March 22, 2016, was untimely.2 In her charge, Teresa alleged that the discriminatory act took

place on September 16, 2013, the date of her termination. Yet her charge was not filed until well

after the 300-day limit required by the ADA, which would have been July 13, 2014. See Parry,

236 F.3d at 309 (6th Cir. 2000); 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1). Instead, Teresa

did not file her charge until after Natural Essentials filed its motion to dismiss in this case on March

16, 2016. Neither Kevin nor Lovejoy ever filed any charges.

        Though Teresa both failed to timely file an EEOC charge and failed to obtain a right-to-

sue letter before bringing suit, Plaintiffs argue that under Zipes v. Trans World Airlines, Inc., 455

U.S. 385 (1982), waiver, estoppel, and equitable tolling are available to them. Id. at 393. While

it is true that the administrative prerequisites at issue are “subject to waiver, estoppel, and equitable

tolling,” id., we do not find that the district court erred in finding that none of the abovementioned

doctrines are available in this case.

        Natural Essentials argues that it plainly did not waive the exhaustion requirements, as this

served as the basis for its motion to dismiss. Further, Natural Essentials urges that a district court

does not have the discretion to waive the statutory requirement to timely file an EEOC charge.

And, indeed, we have stated, “[Zipes] did not suggest that the requirement could be set aside or

waived in the discretion of the District Court.” Jones v. Truck Drivers Local Union No. 299, 748

F.2d 1083, 1086 (6th Cir. 1984). Therefore, waiver is not available.


2
 As the district court noted, Teresa filed her ADA claim with the Ohio Civil Rights Commission, which constitutes a
dual filing with the EEOC.

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Case No. 18-3011
Kevin Jones, et al. v. Natural Essentials, Inc.
        As to equitable tolling and estoppel, the district court concluded that Plaintiffs had not

provided a basis for either doctrine to allow their lawsuit to proceed. Plaintiffs neither made

allegations in their complaint regarding either doctrine, nor argued that either should apply in their

opposition to Natural Essentials’ motion to dismiss. To begin with, equitable tolling is “sparingly

bestowed.” Graham-Humphreys, 209 F.3d at 560. A litigant seeking equitable tolling or estoppel

“must come with clean hands.” King, 230 F.3d 1358, 2000 WL 1478360, at *5 (quoting Banks v.

Rockwell Int'l N. Am. Aircraft Operations, 855 F.2d 324, 327 (6th Cir. 1988)) (internal quotation

marks omitted). Even a one-day extension is inappropriate unless there are “compelling equitable

considerations.” Id. The Supreme Court has given multiple examples of when equitable tolling is

justified, such as inadequate notice, where a motion for appointment of counsel is pending, where

the court has led the plaintiff to believe she has done everything required of her, or where the

defendant has “lulled the plaintiff into inaction.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.

147, 151 (1984). Plaintiffs have not alleged that any of these circumstances are present in this

case.

        Moreover, as the district court stated, we have identified five factors to consider when

determining whether equitable tolling is appropriate: “(1) lack of notice of the filing requirement;

(2) lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights;

(4) absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in remaining

ignorant of the particular legal requirement.” Truitt, 148 F.3d at 648. Plaintiffs repeat their

argument below that Teresa was diligent in pursuing redress for her wrongful termination because

she brought a state court action in March 2014. But as the district court observed, this goes to

demonstrate that Teresa had legal counsel and therefore is presumed to have had constructive

knowledge of filing requirements necessary to preserve her claims. See Jackson v. Richards Med.



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Kevin Jones, et al. v. Natural Essentials, Inc.
Co., 961 F.2d 575, 579-80 (6th Cir. 1992). At a minimum, then, the first, second, and fifth factors

cut against Plaintiffs. We also find the argument that Plaintiffs have been diligent, pursuant to the

third factor, questionable, as Teresa only filed an EEOC charge after Natural Essentials moved to

dismiss, and well after the deadline. Accordingly, we do not find that the district court abused its

discretion in rejecting equitable tolling.

        Finally, Plaintiffs make no specific argument as to estoppel, merely repeating that the

statute of limitations requirement is subject to estoppel, among the other doctrines. Therefore, this

argument is waived. See Cooper v. Commercial Sav. Bank, 591 F. App’x 508, 509 (6th Cir. 2015)

(holding that appellant waived an argument when he referenced one case but did not otherwise

“provide even a modicum of legal argument as to why the district court erred”).

        We have admonished that plaintiffs should not be encouraged to attempt to bypass the

administrative process. Portis v. Ohio, 141 F.3d 632, 635 (6th Cir. 1998) (quoting Pinkard v.

Pullman–Standard, 678 F.2d 1211, 1218 (5th Cir. 1982)). In Portis, we ruled in the plaintiff’s

favor and declined to affirm dismissal of the plaintiff’s case for failure to obtain a right-to-sue

letter prior to filing suit, observing that the letter’s arrival a week after the complaint was filed

“caused [defendant] no prejudice in this case.” Id. at 634. The facts here are manifestly

distinguishable, and ruling otherwise would risk providing the encouragement we have cautioned

against. Accordingly, we conclude that Plaintiffs failed to exhaust their administrative remedies.

Given this, we need not reach the merits of their ADA claims brought under Title I.




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Case No. 18-3011
Kevin Jones, et al. v. Natural Essentials, Inc.
   B. Rule 59(e) Motion

       Plaintiffs also appeal the district court’s denial of their motion to alter or amend the

judgment, as well as the denial of their request for leave to amend their complaint. A district court

has discretion to set aside a judgment under Rule 59(e) “based on: ‘(1) a clear error of law; (2)

newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent

manifest injustice.’” Leisure Caviar, 616 F.3d at 615 (citing Intera Corp. v. Henderson, 428 F.3d

605, 620 (6th Cir. 2005)). Plaintiffs argue that the district court’s ruling on their motion to alter

or amend judgment warrants reversal to “prevent manifest injustice or clear error.” Plaintiffs do

not explain, however, how the district court committed a “clear error of law” in failing to grant

their motion for reconsideration. They state only that finality must yield to the equities of a

particular case, citing case law outside of this circuit. Given our finding that Plaintiffs failed to

exhaust their administrative remedies, the district court did not err in denying the motion to amend

the judgment. As the district court noted, Rule 59(e) does not exist to provide an unhappy litigant

an opportunity to relitigate issues the court has already considered and rejected. Davison v.

Roadway Exp., Inc., 562 F. Supp. 2d 971, 984 (N.D. Ohio 2008). The court concluded that

Plaintiffs failed to demonstrate that it made an error of law. We agree.

       As to Plaintiffs’ motion to amend their complaint, we have held that a claimant who seeks

amendment after losing her case “must provide a compelling explanation to the district court for

granting the motion.” Leisure Caviar, 616 F.3d at 617 (emphasis in original). A claimant must

present the same factors we consider in a Rule 59(e) motion. Id. at 616 (citing Morse v.

McWhorter, 290 F.3d 795, 799 (6th Cir. 2002)). Plaintiffs make no argument regarding newly

discovered evidence, and as with their argument regarding the motion to amend the judgment,




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Kevin Jones, et al. v. Natural Essentials, Inc.
Plaintiffs do not demonstrate a clear error of law that warrants reversal to allow them to amend

their complaint.

       Finally, Plaintiffs make a perfunctory argument that the district court erred when it

dismissed their ADA claims with prejudice. Plaintiffs state that they could have addressed “the

few pleading issues” identified by the district court in a new complaint. Given our findings that

Plaintiffs’ claims were properly dismissed for failure to exhaust and that Plaintiffs failed to

challenge the district court’s finding under Title III, no amendment would cure the defects inherent

in this case. Accordingly, we find that the district court did not err in dismissing Plaintiffs’ ADA

claims with prejudice.

                                                   III.

       For the reasons set forth above, we AFFIRM the district court.




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