ORDER

JAMES CARR, District Judge

This is a workplace discrimination suit brought by plaintiff Ponda Simmons, an African American female, against her former employer, defendant Medical College of Ohio.

Plaintiff asserts multiple claims of race and gender discrimination under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and two state law claims under O.R.C. §§ 4112.02(A) and 4112.99.

This court has jurisdiction pursuant to Title VII, 42 U.S.C. § 1983, and 28 U.S.C. § 1331.

Pending is defendant's motion for judgment on the pleadings to dismiss plaintiff's sex discrimination claim. For the reasons that follow, defendant's motion shall be granted.

Background

On April 27, 2004, plaintiff filed her compliant with this court. On June 23, 2004, defendant filed a partial motion to dismiss based on Rules12(b)(1) and 12(b)(6)of the Federal Rules of Civil Procedure. On August 12, 2004, I granted defendant's motion to dismiss several of plaintiff's claims. Plaintiff has withdrawn several other of her claims, and presently only. plaintiff's Title VII claims for sex and race discrimination remain.

On September 3, 2004, immediately after filing its answer, defendant filed a motion seeking judgment on the pleadings under to Fed.R.Civ.P. 12(c). Defendant asks this court to dismiss plaintiff's sex discrimination claim for failure to state a claim on which relief can be granted. Defendant argues that plaintiff did not exhaust her administrative remedies and is, therefore, not eligible to seek relief under Title VII on this claim.

Standard of Review

Fed.R.Civ.P. Rule 12(c) provides that a party may move for judgment on the pleadings after the pleadings are closed but within such time as not to delay trial. When ruling on a motion for judgment on the pleadings, federal courts may look only to the facts contained in the pleadings. Weiner v. Klais Co., 108 F.3d 86, 88 (6th Cir. 1997). All well-pleaded material allegations of the non-moving party's pleadings are taken as true, and all allegations of the moving party which have been denied are taken as false. Pension Benefit Guaranty Corp. v. Bank One, N.A., 34 F. Supp. 2d 608, 609 (S.D. Ohio 1998). Judgment on the pleadings may be granted only if, on the facts as to admitted allegations, the moving party is clearly entitled to judgment. Id.

Functionally, Rule 12(c) provides the same standard of review as Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), no complaint shall be dismissed unless the plaintiff has failed to allege facts in support of her claim that, construed in her favor, would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D. Ohio 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 246 (1974). A court, however, is not bound to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986).

Discussion

Plaintiff initially argues that defendant's Rule 12(c) motion is actually a Rule 12(b)(6), motion which must be denied because the Sixth Circuit prohibits successive pre-answer Rule 12(b) motions. English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994) (failure to assert an affirmative defense in a preanswer motion to dismiss waives the right to raise the issue in a second pre-answer motion to dismiss.) Plaintiff's argument is without merit.

The Sixth Circuit recognizes that Rule 12(g) and Rule 12(h)(2) provide an exception to Rule 12(h) waivers. Id. at 1091. Rule 12(g) and Rule 12(h)(2) permit the affirmative defense of failure to state a claim to be brought in a subsequent pleading, motion for judgment on the pleadings, or at trial. Id. Rule 12(g) states:

A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

(Emphasis added).

Rule 12(h)(2) states:

A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(Emphasis added).

Therefore, I may properly consider defendant's Rule 12(c) motion.

Defendant seeks dismissal of plaintiff's Title VII sex discrimination claim on the basis that the face of the pleadings discloses that she failed to exhaust her administrative remedies before including that claim in her complaint. Before proceeding with a Title VII claim, a plaintiff must exhaust, as a condition precedent, all administrative remedies. Zipes v. TWA, 455 U.S. 385, 392-98 (1982).

The complaint filed by plaintiff with the Ohio Civil Rights Commission (OCRC) does not reference sex discrimination. Further, plaintiff's complaint in this court does not specifically plead that she notified the OCRC of any alleged sex discrimination.

Plaintiff attempts to overcome her failure to have asserted a claim of gender discrimination in her OCRC filing through an affidavit attached to her reply brief. In her affidavit, plaintiff swears that she discussed her sex discrimination with Carl Jones of the OCRC on May 7, 2003. This affidavit, however, is extrinsic to the pleadings.

Under Rule 12(c), I have discretion either to consider evidence extrinsic to the pleadings, and convert defendant's Rule 12(c) motion to a Rule 56 motion for summary judgment, or to exclude such evidence. Adler v. John Carroll University, 549 F.Supp 652, 654 (N.D. Ohio 1982).

I choose to exclude plaintiff's affidavit from consideration. Even if true, any oral statements to OCRC could not have placed the defendant on notice of plaintiff's sex discrimination allegations. A basic purpose of the exhaustion requirement was thus frustrated. See Delisle v. Brimfield Twp. Police Dept., 94 Fed.Appx. 247, 254, 2004 WL 445181, *6 (6th Cir.) (Unpublished disposition) ("the administrative exhaustion requirement's purpose is, at least in part, to put potential defendants on notice").

Here, no record of any allegations of gender discrimination was made before or by the OCRC. Consequently, the defendant never was on notice of any such allegation until plaintiff filed this suit, and the OCRC was unable to investigate and attempt to resolve such claim. See, e.g., Parsons v. Yellow Freight System, Inc., 741 F.2d 871, 872 (6th Cir. 1984) ("The requirement that the plaintiff exhaust administrative remedies prior to instituting suit is intended to ensure that the Commission will have been afforded an opportunity to attempt conciliation and voluntary settlement, `the preferred means for resolving employment discrimination disputes.'") (citing United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 846 (5th Cir. 1975)).

Having failed to submit her sex discrimination claim to the OCRC, plaintiff cannot present such claim to this court.

Conclusion

In light of the foregoing, it is hereby

ORDERED THAT defendant's motion to dismiss plaintiff's gender discrimination claim be, and the same hereby is granted.

The Clerk shall set this case for a Case Management conference.

So ordered.