[Cite as Toman v. Humility of Mary Health Partners, 2014-Ohio-4417.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

PENNY TOMAN, ) 

 ) CASE NO. 13 MA 105 

 PLAINTIFF-APPELLANT, ) 

 ) 

 - VS - ) OPINION 

 ) 

HUMILITY OF MARY HEALTH ) 

PARTNERS, ) 

 ) 

 DEFENDANT-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 13 CV 245. 

JUDGMENT: Affirmed in Part, Reversed in Part 

 and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Shelli Freeze 

839 Southwestern Run Road 

Youngstown, OH 44514 

For Defendant-Appellant: Attorney Karen Soehnlen McQueen 

Attorney Aletha Carver 

4775 Munson Street, N.W. 

P.O. Box 36963 

Canton, OH 44735-6963 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Joseph Vukovich 

Hon. Cheryl L. Waite 

Dated: September 29, 2014 
[Cite as Toman v. Humility of Mary Health Partners, 2014-Ohio-4417.]

DeGenaro, P.J. 

{¶1} Plaintiff-Appellant Penny Toman appeals the June 10, 2013 judgment of the 

Mahoning County Court of Common Pleas granting a motion for judgment on the 

pleadings in favor of Appellee Humility of Mary Health Partners in an action involving 

employment termination. For purposes of resolving a Civ.R.12(C) motion, material facts 

in the complaint and all reasonable inferences must be construed in favor of the nonmoving party as true; however, the trial court construed the facts in favor of Humility. 

Applying the proper standard, Toman alleged sufficient facts to support her claim that she 

was terminated because of her pregnancy in violation of R.C. 4112.02(A). Thus, the trial 

court erred in granting Humility judgment on the pleadings on this claim. Accordingly, the 

judgment of the trial court is reversed in part regarding Toman's claim pursuant to R.C. 

4112.02(A) and remanded for further proceedings on that claim. The balance of the trial 

court's judgment is affirmed. 

Facts and Procedural History 

{¶2} As this is an appeal from a judgment on the pleadings, the facts are gleaned 

from the Complaint and Answer. From April 23, 2012, until July 14, 2012, Toman was an 

employee of Humility. At the time she commenced her employment at Humility as a 

licensed social worker, Toman was pregnant with an anticipated due date of July 14, 

2012. 

{¶3} Toman claimed that on July 12, 2012, Humility informed her that if she 

delivered her child before July 20, 2012, she would be terminated. On July 14, 2012, 

Toman delivered her child and thereafter was terminated from Humility. 

{¶4} On January 29, 2013, Toman filed a complaint against Humility alleging two 

causes of action. First, she claimed she was discharged without just cause based on her 

pregnancy in violation of R.C. 4112.02(A), and denied reasonable leave on account of 

childbirth in violation of Ohio Adm.Code 4112-5-05(G)(5) and (6). The second cause of 

action alleged that Humility wrongfully terminated her in violation of public policy based on 

sex discrimination in violation of R.C. Chapter 4112. She claimed damages including: 

loss of health care benefits, past and future benefits, past and future wages, damage to 

earning capacity, damage to her credit report and reputation, and emotional distress. 
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{¶5} On March 15, 2013, Humility filed an answer and a motion for judgment on 

the pleadings. Therein, Humility alleged that it advised Toman on July 12, 2012 that; (1) it 

had a written Personal Leave of Absence Policy, which states that "[a]n employee must 

have at least 90 days of continuous employment, and successfully completed his or her 

orientation period to be eligible for personal leave;" and (2) that pursuant to this Policy 

she did not have any personal leave time available to her prior to July 20, 2012. Humility 

maintained that after Toman gave birth to her child, she never returned to work and was 

thus terminated. Thus, inter alia, Humility argued that Toman cannot demonstrate that 

she was discriminated on the basis of her sex. 

{¶6} On April 2, 2013, Toman opposed Humility's motion for judgment on the 

pleadings, arguing that she was unlawfully terminated because she was discriminated 

against based on her sex. Specifically, she was terminated because of her pregnancy, a 

condition only available to women, and because she gave birth before July 20, 2012. On 

April 9, 2013, Humility filed a response and alleged that Toman improperly relied on facts 

not pled in the complaint, that her allegations did not entitle her to relief, and her 

allegation of wrongful termination based on public policy argument was untenable. On 

June 10, 2013, the trial court granted Humility's motion for judgment on the pleadings. 

Civ.R. 12(C) 

{¶7} In her sole assignment of error, Toman asserts: 

{¶8} "The trial court prejudicially erred when it failed to interpret Ohio Civil Rule 

12(C) most favorable to the Appellant and granted the Appellee's motion for judgment on 

the pleadings." 

{¶9} The purpose of a Civ.R. 12(C) motion for judgment on the pleadings is to 

resolve questions of law. Whaley v. Franklin Cty. Bd. Of Commrs., 92 Ohio St.3d 574, 

581, 2001-Ohio-1287, 752 N.E.2d 267; Wright v. Schwebel Baking Co., 7th Dist. No. 04-

MA-62, 2005-Ohio-4475, ¶9 (stating that a Civ.R. 12(C) motion "has been characterized 

as a belated Civ.R. 12(B)(6) motion to dismiss for failure to state a claim"). The rule 

further provides that the motion can be filed by either party after the pleadings are closed, 

but within such time as not to delay trial. Trinity Health Sys. v. MDX Corp., 180 Ohio 
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App.3d 815, 2009-Ohio-417, 907 N.E.2d 746, ¶17 (7th Dist.); State ex rel. Pirman v. 

Money, 69 Ohio St.3d 591, 592, 635 N.E.2d 26 (1994). Because a trial court may only 

consider the complaint, answer, and any documents attached to those pleadings when it 

rules on a Civ.R. 12(C) motion, it is very limited in its ability to review and discuss the 

facts of a case. Trinity Health Sys. at ¶17, citing State ex rel. Midwest Pride IV, Inc. v. 

Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996); Rothschild v. Humility of Mary 

Health Partners, 163 Ohio App.3d 751, 2005-Ohio-5481, 840 N.E.2d 258, ¶6 (7th Dist.). 

A judgment on the pleadings dismissing a case is proper where the trial court "(1) 

construes the material allegations in the complaint, with all reasonable inferences to be 

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that 

the plaintiff could prove no set of facts in support of his claim that would entitle him to 

relief." Pontious at 570. 

{¶10} When reviewing a trial court's judgment on the pleadings, the appellate 

court engages in a de novo standard of review without deference to the trial court's 

determination. Drozeck v. Lawyers Title Ins. Corp., 140 Ohio App.3d 816, 820, 749 

N.E.2d 775 (8th Dist.2000). Thus, because Humility was granted judgment on the 

pleadings pursuant to Civ.R 12(C), Toman is "entitled to have all the material allegations 

of the complaint, together with all reasonable inferences drawn therefrom, construed in 

[her] favor." Whaley at 581. 

{¶11} We must address two preliminary issues before reaching the merits of 

Toman's appeal. First, Toman raised numerous factual assertions in her opposition brief 

to Humility's Civ.R. 12(C) motion before the trial court that were not raised in the 

pleadings. The trial court may only consider the pleadings and attached exhibits. Schmitt 

v. Educational Serv. Ctr. of Cuyahoga Cty., 2012-Ohio-2208, 970 N.E.2d 1187, ¶10 (8th 

Dist.). Because we are limited in our review and may only examine the complaint, answer 

and any exhibits attached to those pleadings, we may not consider these new facts 

proffered by Toman. 

{¶12} Second, Toman has not challenged on appeal the trial court's judgment on 

the pleadings in favor of Humility on Count II of her Complaint alleging her termination 
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was in violation of public policy. Thus, the only issue before us is whether the trial court 

erred in granting judgment on the pleadings in favor of Humility on Count I of Toman's 

Complaint alleging she was terminated on the basis of her sex, specifically because of 

her pregnancy, and that she was denied reasonable leave on account of childbirth in 

violation of Ohio Adm.Code 4112-5-05(G)(5) and (6). 

Ohio Adm. Code 4112-5-05(G) Remedies 

{¶13} Ohio Adm.Code 4112-5-05(G)(5) prohibits employers from penalizing 

women in their conditions of employment because they require time away for 

childbearing. If the female employee qualifies for leave under the employee leave policy, 

then the employer must consider childbearing as a justification for a leave of absence for 

a reasonable time period. Id. If an employer does not have a leave policy, Ohio 

Adm.Code 4112-5-05(G)(6) provides that employers must allow female employees to 

take a leave of absence for a reasonable period of time for childbearing. Clearly, Ohio 

Adm.Code 4112-5-05(G)(6) does not apply because Humility indisputably has a leave 

policy. 

{¶14} With regard to Ohio Adm.Code 4112-5-05(G)(5), viewing the facts in the 

light most favorable to Toman, she did not qualify for leave under Humility's Policy 

because the Policy states that "[a]n employee must have at least 90 days of continuous 

employment, and successfully completed his or her orientation period to be eligible for 

personal leave." Toman was employed at Humility from April 23, 2012 until July 14, 

2012, which does not amount to 90 days. As such Toman does not qualify for leave 

under the employee Policy, and Humility need not consider childbearing as a justification 

for a leave of absence for a reasonable time period. Toman has not pled facts to the 

contrary. As such, the trial court was correct to grant Humility's Civ.R. 12(C) motion with 

respect to Toman's claim under Ohio Adm.Code 4112-5-05(G)(5). 
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R.C. 4112.02(A) Sex Discrimination Based upon Pregnancy Claim 

{¶15} Pursuant to R.C. 4112.02(A), it is an unlawful discriminatory practice for any 

employer to discharge an employee without just cause because of the employee's sex. 

R.C. 4112.02(B) provides that 'because of sex' includes "because of or on the basis of 

pregnancy, any illness arising out of and occurring during the course of a pregnancy, 

childbirth, or related medical condition, " and that pregnant women "shall be treated the 

same for all employment-related purposes * * * as other persons not so affected but 

similar in their ability or inability to work." McFee v. Nursing Care Mgt. of Am., Inc., 126 

Ohio St.3d 183, 2010-Ohio-2744, 931 N.E.2d 1069, ¶11. As such, "the statutes do not 

impose a per se ban on the termination of every employee affected by pregnancy" and an 

employer may terminate an employee for a nondiscriminatory reason. Id. at ¶12. 

{¶16} To prove a pregnancy discrimination claim, the plaintiff must show that the 

defendant treated her differently because of her pregnancy. McFee at ¶16, citing Priest 

v. TFH–EB, Inc.,127 Ohio App.3d 159, 165-166, 711 N.E.2d 1070 (1998). 

{¶17} The following facts—all of which were admitted by Humility—are relevant to 

Toman's claim that Humility terminated her because of her pregnancy: (1) she was 

employed by Humility from April 23, 2012, until July 14, 2012; (2) at all times during her 

employment she was pregnant; (3) she delivered her baby on July 14, 2012; (4) she was 

terminated by Humility. The parties dispute the following facts: 1) Toman alleged during 

her employment her potential due date was July 14, 2012; and 2) what occurred on July 

12, 2012: Toman alleges Humility told her she would be terminated if she delivered 

before July 20, 2012, whereas Humility alleges Toman was informed that she had no 

available leave time prior to July 20, 2012. Nonetheless, these disputed facts must be 

construed in favor of Toman. 

{¶18} Construing the material facts in the complaint and all reasonable inferences 

in favor of Toman as true, during the entire course of her employment she was pregnant, 

that Humility told her if she delivered her baby before July 20, 2012, her employment 

would be terminated, and she was terminated by Humility on July 14, 2012, the day she 

delivered. For purposes of resolving a Civ.R.12(C) motion, these facts are sufficient to 
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support Toman's R.C. 4112.12(A) claim that she was terminated because of her 

pregnancy. Thus, the trial court erred in granting Humility judgment on the pleadings on 

this claim. 

{¶19} The trial court improperly inferred from Humility's answer that Toman knew 

about the 90-day Policy and that she was not eligible for leave based upon that Policy; 

giving weight to Humility's assertion that on July 12, 2012, Toman was informed of the 

Policy, knew that she was ineligible for personal leave of absence, and failed to return to 

work. The trial court should have resolved the factual dispute between the parties 

regarding what was said on July 12, 2012 in Toman's favor as the non-moving party; 

instead, it inferred that Humility told Toman if she delivered before July 20, 2012, she 

would be terminated. 

{¶20} Pursuant to Civ.R. 12(C), the trial court was obligated to interpret material 

allegations and reasonable inferences in favor of Toman as the non-moving party. 

Although Toman does not allege a myriad of facts to support her allegations, the trial 

court could reasonably infer that Toman was told she would be terminated for giving birth 

before July 20, 2012, demonstrating differential treatment prohibited by R.C. 4112.02(A). 

At this stage of the litigation and in the context of reviewing a judgment on the pleadings, 

we cannot say that Toman can prove no set of facts in support of her claim that she was 

terminated because of her pregnancy which would entitle her to relief pursuant to R.C. 

4112.02(A). Accordingly, Toman's assignment of error is meritorious in part. 

{¶21} In conclusion, the trial court erred in granting Humility's Civ.R. 12(C) motion 

for judgment on the pleadings with respect to Toman's R.C. 4112.02(A) claim; accordingly 

that judgment is reversed, and the case remanded for further proceedings on that claim. 

The balance of the trial court's judgment is affirmed. 

Vukovich, J., concurs. 

Waite, J., concurs.