Ambris v. City of Cleveland et al
Filing
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Opinion and Order. Defendants' Motion to Dismiss Second Amended Complaint (Related doc # 14 ) is granted. The Court declines to exercise its supplemental jurisdiction over Plaintiff's state-law claims and remands Plaintiff's state law claims to Cuyahoga County Court of Common Pleas for further adjudication. Judge Christopher A. Boyko on 11/19/2012. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SANDRA AMBRIS,
Plaintiff,
Vs.
CITY OF CLEVELAND, ET AL.,
Defendant.
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CASE NO.1:12CV774
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
I. ISSUE
This matter comes before the Court on Defendant’s City of Cleveland and Khalid
Bahhur’s Renewed Motion (ECF DKT # 14) to Dismiss Plaintiff’s Second Amended Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II. PROCEDURAL HISTORY
On February 21, 2012, Plaintiff filed her Complaint in the Cuyahoga County Court of
Common Pleas against Defendants City of Cleveland, Department of Port Control Division of
Harbors, and Commissioner Khalid Bahhur, alleging, inter alia, a R.C. 4112 retaliation claim
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and a 42 U.S.C. § 1983 Equal Protection claim.
On April 6, 2012, Defendants filed a Notice of Removal to United States District Court.
On April 26, Defendants filed their Motion to Dismiss, seeking to have Plaintiff’s
Complaint dismissed, arguing immunity, and that Plaintiff is not a member of a protected class,
which Plaintiff opposed on May 10, 2012.
On July 3, 2012, pursuant to this Court’s Order, Plaintiff filed her First Amended
Complaint, in which she removed the Department of Port Control, Division of Harbors as a
named party Defendant.
Due to inadvertently deleting a paragraph, Plaintiff filed her Motion for Leave to File
Instanter Her Second Amended Complaint on July 11, 2012, which the Court granted on July 16,
2012.
On August 17, 2012, Defendants filed their Renewed Motion to Dismiss Plaintiff’s
Second Amended Complaint, which is identical to their April 26, 2012 Motion to Dismiss.
III. LAW AND ARGUMENT
A. Civil Rule 12(b)(6) Standard
In deciding a motion to dismiss under R. 12(b)(6), the court must accept as true all of the
factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court need not, however, accept conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” As
the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955
[(2007)], the pleading standard Rule 8 announces does not require “detailed
factual allegations,” but it demands more than an unadorned, the-Defendantunlawfully-harmed-me accusation. Id., at 555... A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will
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not do.” Id. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]”
devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570.
A claim has facial plausibility when the Plaintiff pleads factual content that allows
the court to draw the reasonable inference that the Defendant is liable for the
misconduct alleged. Id., at 556. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a
Defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are
“merely consistent with” a Defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id., at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). According to the Sixth
Circuit, the standard described in Twombly and Iqbal “obliges a pleader to amplify a claim with
some factual allegations in those contexts where such amplification is needed to render the claim
plausible.” Weisbarth v. Geagua Park Dist., 499 F.3d 538, 541 (6th Cir. 2007) (quoting Iqbal v.
Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)). That is, “Iqbal interpreted Twombly to require
more concrete allegations only in those instances in which the complaint, on its face, does not
otherwise set forth a plausible claim for relief.” Weisbarth, 499 F.3d at 542. A complaint should
be dismissed when it fails to allege “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
B. Relevant Facts
On or about November 1, 2007, Plaintiff was hired by Defendant City as Harbor Master
for the Department of Port Control, Division of Harbors. At all times during Plaintiff’s
employment, Defendant Bahhur was Defendant City’s Commissioner and Plaintiff’s supervisor.
Despite Defendant City’s clear policy, expressed in Cleveland Ordinance 663.02(a), prohibiting
discrimination based on sexual orientation, Defendant Bahhur made sexually and racially
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inappropriate and/or derogatory comments to Plaintiff and her co-workers, including:
(a)
questioning Plaintiff’s co-workers, on several occasions, about Plaintiff’s sexual
orientation and her female significant other;
(b)
calling Ken Silliman, the Chief of Staff, “a queer” and “a faggot;”
(c)
calling Linda Henrichsen, the City Planner, “a dyke;”
(d)
referring to an openly gay City of Cleveland businessman as “a queer” and “a
faggot;”
(e)
calling Valerie McCall, the Chief of Government Affairs, who is AfricanAmerican, a “nigger crack whore;”
(f)
calling Dan Psimer, the Operations Manager, “white trash;” and
(g)
using racial slurs when referring to and when speaking with African-American
custodial employees Shirley Sellars and Vera Dyer.
From approximately 2009 to 2010, Plaintiff attended planning meetings and otherwise
volunteered as a Defendant City representative to bring to Cleveland the 2014 Gay Games. In
early 2010, when Bahhur learned that the 2014 Gay Games had been confirmed to take place in
Cleveland and would require the use of Defendant City’s lakefront property, he made numerous
derogatory comments to Plaintiff, such as, “I can’t believe I have to be involved with those gays
and dykes,” and, “I can’t wait to see those fags running up and down the lakefront.”
In approximately September of 2010, Plaintiff reported Defendant Bahhur’s sexually and
racially motivated comments and conduct to Defendant City’s Chief of Staff, Percy Dangerfield
(“Dangerfield”), and requested that she be transferred out of Bahhur’s department. Dangerfield
stated that he was “aware of the situation” and was in the process of “making changes.”
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Upon hearing that Plaintiff reported him to Dangerfield, Defendant Bahhur began to
chastise Plaintiff for reporting him, and began micro-managing her work by, inter alia, requiring
her to send all of her outgoing emails to him to review, and attempting to cancel a Defendant
City event that Plaintiff had planned.
On October 25, 2010, Plaintiff again requested that Dangerfield transfer her out of
Bahhur’s department. This time, Plaintiff alleges that no steps were taken to investigate or
discipline Bahhur for his discriminatory conduct, and that she was not granted her request.
On November 8, 2010, two months after Plaintiff reported Bahhur, Dangerfield
disciplined Plaintiff, gave her a Notice of Pre-Disciplinary Conference, and promptly placed her
on paid administrative leave, allegedly for awarding a painting contract to A Room With A View
Studio (“Studio”), a painting company owned by a relative of Plaintiff’s significant other.
During the November 16, 2010 pre-disciplinary conference, Plaintiff presented evidence
that would show that her actions involved no impropriety in granting her significant other’s
company the painting contract. Plaintiff attempted to show that Studio’s bid was the lowest bid,
that Studio had worked with Defendant City in the past, that Defendant City was always satisfied
with Studio’s work, and that Studio’s invoice had been reviewed and approved by Bahhur,
Cleveland-Cuyahoga County Port Authority’s Chief Financial Officer, Brent Leslie, and
Cleveland Port Authority’s Director, Ricky Smith.
Plaintiff alleges that, instead of discussing the policy that Plaintiff was accused of
violating and Plaintiff’s evidence showing no impropriety, the discussion focused on Plaintiff’s
sexual orientation and comments/inquiries regarding her significant other.
On January 4, 2011, Defendants took Plaintiff off paid administrative leave, and in lieu
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thereof, imposed a thirty day unpaid suspension, allegedly for awarding the painting contract to
Studio.
On February 8, 2011, within one hour of Plaintiff’s return to work from her suspension,
Dangerfield handed Plaintiff a second Notice of Pre-Disciplinary Conference, allegedly because
personal documents had been found on Plaintiff’s work computer during her suspension.
Plaintiff was immediately placed on paid administrative leave. The second pre-disciplinary
conference for Plaintiff’s second alleged infraction was scheduled for, and took place on,
February 11, 2011.
During the February 11, 2011 pre-disciplinary conference, Plaintiff explained that any
personal matters to which she attended while at work were done during her lunch break, not
during her work hours. Plaintiff further explained that almost all of Defendant City’s employees
use their work computer for personal matters. Rather than inquiring about Plaintiff’s alleged
infraction, the disciplinary board focused again on Plaintiff’s relationship with her significant
other.
On February 18, 2011, Defendants fired Plaintiff, allegedly for awarding the painting
contract to Studio and misusing her work computer. Plaintiff alleges that her similarly situated
heterosexual co-workers who engaged in the same or similar conduct as Plaintiff by utilizing
their work computers for personal matters, were not terminated or even disciplined.
On or about October 11, 2011, Defendant City posted a job opening for Plaintiff’s former
position with a salary range up to $94,970.71, which is $18,970.71 more than Plaintiff was being
paid at the time of her termination.
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C. Defendants’ Motion to Dismiss
Defendants seek to have the Court dismiss Plaintiff’s Second Amended Complaint based
on Defendant Bahhur’s qualified immunity, Defendant City’s statutory immunity under R.C. §
2744.02, failure to allege adequate facts against Defendant City of Cleveland pursuant to Monell
v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694-95 (1978), and failure to allege a
constitutional violation pursuant to 42 U.S.C. § 1983 and Title VII.
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Plaintiff’s Claim for Violation of Equal Protection Rights under § 1983, R.C.
§ 4112.02, and Title VII
Plaintiff alleges that Defendant City, despite City of Cleveland Ordinance 663.02(a),
engaged in a “systematic pattern of sexual orientation discrimination” by “fabricating
policy/procedure violations allegedly committed by [homosexual employees]...but not by
employees who are [heterosexual]” and by ‘retaliating against [homosexual employees] who
complain about or report discrimination.” Plaintiff alleges that Defendants discriminated against
her based on her sexual orientation, and terminated her based on her sexual orientation, which
she claims constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution, and Cleveland’s Ordinance 663.02(a).
Defendants claim that Plaintiff has failed to allege sufficient facts to show that
Defendants have violated a constitutional right under 42 U.S.C. § 1983 because the Plaintiff has
failed to allege that she is a member of a protected class.
The Sixth Circuit has noted several times that “the showing a plaintiff must make to
recover on a disparate treatment claims under Title VII mirrors that which must be made to
recover on an equal protection claim under § 1983.” Smith v. City of Salem, Ohio, 378 F.3d 566
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(6th Cir. 2004); See Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000); Sutherland v.
Michigan Dept. of Treasury, 344 F.3d 603, 614 (6th Cir. 2003); Gutzwiller v. Fenik, 860 F.2d
1317 (6th Cir. 1988)(citing Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011 (6th Cir.
1987)); Daniels v. Bd of Educ., 805 F.2d 203, 207 (6th Cir. 1986); Lautermilch v. Findlay City
Schs., 314 F.3d 271, 275 (6th Cir. 2003) (“To prove a violation of the equal protection clause
under § 1983, [a plaintiff] must prove the same elements as are required to establish a disparate
treatment claim under Title VII.”).
In order to establish a prima facie case of discrimination under Title VII, a plaintiff must
show: (1) that she is a member of a protected class; (2) that she was subjected to an adverse
employment action; (3) that she was qualified for the position; and (4) that she was treated
differently than similarly situated individuals outside the protected class. Humenny v. Genex
Corp., 390 F.3d 901, 906 (6th Cir. 2004). Defendant argues Plaintiff’s claims, that she is not
bringing a Title VII claim, is irrelevant as the framework for analyzing claims of intentional
employment discrimination under Title VII is the same framework that is used under 42 U.S.C. §
1983. Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988).
Defendant argues that Plaintiff has failed to meet her prima facie burden under the Title
VII framework by failing to allege that she is a member of a protected class. Under Title VII of
the Civil Rights Act of 1964, an employer is prohibited from discriminating against an individual
“because of such individual’s race, color, religion, sex, or national origin.” 42. U.S.C. § 2000e2(a)(1). Sexual orientation is clearly absent from the protected classes listed in Title VII.
Defendant also cites to a prior Sixth Circuit decision that held gay persons are not a protected
class for equal protection purposes. Preston v. Hughes, 178 F.3d 1295 (6th Cir. 1999)
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(unpublished table decision)(court affirmed dismissal of gay plaintiff’s § 1983 claim as frivolous
as it did not present a claim with an arguable or rational basis in law or fact).
Plaintiff, however, points to contrary, and more recent, Sixth Circuit precedent that would
tend to show that the Sixth Circuit is not required to apply the Title VII framework in equal
protection claims under § 1983. The Sixth Circuit, in Scarbrough v. Morgan County Bd. of
Educ., 470 F.3d 250 (6th Cir. 2006), did not apply the Title VII framework to a case dealing with
intentional employment discrimination. Scarbrough alleged that the Defendant Board of
Education violated the Equal Protection Clause when it refused to rehire Scarbrough as Director
of Schools. The Board allegedly was motivated by “animus” towards homosexuals, and refused
to rehire Scarbrough because it was rumored that he was going to be giving a prayer in front of a
primarily gay and lesbian congregation.
The Sixth Circuit stated that the “threshold element of an equal protection claim is
disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied
is determined by the classification used by government decision makers.” Id. After this threshold
element is reached, the Sixth Circuit must determine what level of scrutiny to apply to the
government’s action.
Although the Scarbrough Court is not entirely clear about what the individual levels of
scrutiny are, other courts have shown that there are three levels of scrutiny applied to § 1983
claims arising under the Equal Protection Clause of the Fourteenth Amendment. The three levels
of scrutiny are strict scrutiny, intermediate scrutiny, and rational basis review. Decisions based
upon race invoke strict scrutiny: the government action must be narrowly tailored to serve a
compelling state interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).
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Gender classifications invoke the intermediate level of scrutiny: the action must be substantially
related to an important government interest. Id. at 440-41. Sexual orientation classifications (and
other classifications which are not considered “suspect” or “quasi-suspect”) receive the lowest
level of scrutiny: they need only be rationally related to a legitimate state purpose. Washington v.
Davis, 426 U.S. 229 (1976); Copeland v Machulis, 57 F.3d 476, 481 (6th Cir. 1995).
The Sixth Circuit in Scarbrough acknowledged that strict scrutiny should not be applied
in that case. Scarbrough, 470 F.3d at 261 (“Inasmuch as homosexuality is not a suspect class in
this circuit, we cannot hold that persons who associate with homosexuals constitute a suspect
class.”) However, the Sixth Circuit applied a rational basis review of the Board’s actions with
regard to Scarbrough’s termination. Scarbrough interpreted the rational basis test to mean:
A government action is considered irrational only if it is “unrelated to the
achievement of any combination of the legitimate purposes.” Warren v. City of
Athens, 411 F.3d 697, 710 (6th Cir. 2005). “The desire to effectuate one’s animus
against homosexuals [,however,] can never be a legitimate governmental purpose,
[and] a state action based on that animus alone violates the Equal Protection Clause.”
Stemler v. City of Florence, 126 F.3d 856, 873-874 (6th Cir. 1997). A “plaintiff may
demonstrate that the government action lacks a rational basis... either by negativing
every conceivable basis which might support the government action, or by
demonstrating that the challenged government action was motivated by animus or illwill.” Warren, 411 F.3d at 711.
Scarbrough, 470 F.3d at 261. The court determined that Scarbrough carried his burden by
offering “sufficient evidence to create a genuine issue of material fact as to whether Lively,
Strand, and Spurling were motivated by animus against homosexuals.” Id.
The troubling aspect with the Scarbrough case, and the Sixth Circuit’s treatment of this
area of the law in general, is that there is no mention of prior precedent when deciding to branch
from the Title VII framework for employment discrimination claims. This may have been an
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oversight by the Sixth Circuit in Scarbrough or a reflection of the current trend in the law, but it
makes it much harder on the District Court to determine the outcome when the law is in such
flux. If the Sixth Circuit has overruled the prior precedent of City of Salem with its decision in
Scarbrough, then the Sixth Circuit must explicitly state it is doing so. As such, the Court is
bound to apply the Title VII framework outlined in City of Salem until such precedent is
expressly overturned by the Sixth Circuit alone.. Applying City of Salem, Plaintiff must allege
sufficient facts to meet all four elements of a prima facie case under Title VII. Without such
factual sufficiency, her complaint will be dismissed.
Plaintiff points to a case filed in the Southern District of Ohio that applied the Title VII
framework and still allowed a person claiming sexual orientation discrimination in an adverse
employment action to maintain a claim under § 1983 despite the fact he was not a member of a
protected class. Glover v. Williamsburg Local School Dist. Bd. of Educ. 20 F.Supp.2d 1160 (S.D.
Ohio 1998). In Glover, the plaintiff was hired to a one-year contract with option for renewal by
the Defendant School District during the 1995-96 school year to fill a full-time teaching position.
At all times, Barry Campbell, superintendent of Williamsburg School District, was aware of
Glover’s sexual orientation. Id. at 1162.
During the first semester, Glover was evaluated by Michael McEvoy, principal of
Williamsburg Elementary School, in accordance with a common procedure of reviewing the
performance of first-year teachers. Id. at 1163. During this evaluation, Glover received a positive
evaluation in all categories except “Management of Student Behavior” and “Conformity with
Professional Standards.” Id. While “Management of Student Behavior” was poor because
Glover relied on sending students to the principal’s office too much rather than handling the
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situation in class, Glover’s poor “Conformity with Professional Standards” was due to a false
rumor that Glover had held the hand of his partner at a holiday party. Id. at 1165. The rumor was
eventually cleared up and Glover’s evaluation was changed in order to reflect the falsity of the
rumor.
During the second semester, however, McEvoy increased his observations of Glover from
the required two to six observations during the semester. Id. It turns out that the increased
observations were due to a parent’s complaint about the unruly nature of Glover’s classroom.
According to protocol, Glover should have been notified of the community concern with his
teaching style, but was never informed by McEvoy. Id.
At the end of the year, Glover’s contract was not renewed. Instead, the school board
decided to renew the contract of Theresa Whiteman, a fellow first-year teacher. In all of
Whiteman’s evaluations, she received a lower score than Glover, and, at one point during the
year, lost control of the classroom to the point that one of her students had to be rushed to the
hospital in an ambulance. Id. at 1166.
During an appeal of his non-renewal, Glover publicly claimed that the unfounded rumors
caused the non-renewal. Id. at 1167. The Williamsburg School Board decided that it would
uphold the non-renewal, based on, in their opinion, the fact that teachers should not publicly
criticize their school districts. Id.
The Court first acknowledges that courts have dealt with government discrimination
claims using three separate types of scrutiny: strict, intermediate, and rational basis. However,
the court seems to apply the Title VII framework to Glover’s case. Id. at 1170 (“Thus, Glover’s
discrimination claims, which are brought pursuant to both Ohio law and the Equal Protection
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Clause, can be analyzed under the Title VII framework.”). The court explains the elements under
a Title VII claim, which require that plaintiff: 1) be a member of a protected class, 2) that he was
qualified for the position and the employer was accepting applicants, 3) that the plaintiff was
rejected, and 4) that he was replaced by someone outside the protected class. Id. At first glance,
the court seems to gloss over the first element of the Title VII analysis.
Earlier in the opinion, the court explained, “Homosexuals [are] not a ‘suspect class’ for
equal protection analysis.” Id. at 1169. This should end the Title VII analysis, as Glover could
not possibly carry his burden under Title VII. However, the court claimed that while
homosexuals may not be in a “suspect class:”
Homosexuals... are entitled to at least the same protection as any other identifiable
group which is subject to disparate treatment by the state. See Stemler, 126 F.3d at
874 (“[T]he principle would be the same if Stemler had been arrested
discriminatorily based on her hair color, her college bumper sticker... or her
affiliation with a disfavored sorority or company.”).”
Using this rationale, the court claimed that Glover had plead a prima facie case under Title VII,
despite never establishing that he was a protected class.
The outcome of the Southern District in Glover is entirely irrational. The plaintiff clearly
did not meet the prima facie burden under Title VII as he failed to show he was a member of a
protected class. Glover would essentially open up all persons and classes of persons to
protection under Title VII, completely abrogating the first element of the Title VII analysis. The
Court refuses to take such an approach. To do so would allow the judiciary to step into the shoes
of the legislature and violate the doctrine of separation of powers upon which our government’s
infrastructure was founded. Plaintiff has failed to meet her pleading burden under Title VII, and
Defendant’s Motion to Dismiss is granted.
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2.
Qualified Immunity of Defendant Bahhur
If the Court were to find that the Plaintiff met her evidentiary burden under Title VII, her
claim would still fail due to Defendant’s qualified immunity. “Government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“Qualified Immunity ‘is an affirmative defense that must be pleaded by a defendant official.’” Id.
at 815. But qualified immunity “is an immunity from suit rather than a mere defense to liability.”
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). “Immunity ordinarily should be decided by the court long before trial.” Hunter, 502
U.S. at 228 (citing Mitchell, 472 U.S. at 527-29). ‘Unless the plaintiff’s allegations state a claim
of violation of clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.” Mitchell, 472 U.S. 511 at 526 (citing Harlow,
457 U.S. at 818). The issue of qualified immunity must be addressed at the earlier possible point
in the litigation. Saucier v. Katz, 533 U.S. 194, 200-201 (2001); Siegert v. Gilley, 500 U.S. 226,
232 (1991). The Supreme Court has stated that, “[u]ntil this threshold immunity question is
resolved, discovery should not be allowed.” Harlow, 457 U.S. at 819.
The Sixth Circuit applied a two-prong inquiry into whether defendant is entitled to
qualified immunity. First, a court must ask whether the plaintiff suffered a violation of his
constitutional rights. Hager v. Pike County Bd. of Educ., 286 F.3d 366 (6th Cir. 2002). Second,
the court must ask if the constitutional right in question was a clearly established constitutional
right of which a reasonable person would know. Id. Here, if we decided to follow Scarbrough
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and determine that the plaintiff has plead a prima facie constitutional violation, our inquiry
would turn to whether the existence of Scarbrough is enough to determine that Plaintiff’s right to
be free from discrimination based on her sexual orientation was “clearly established.” While the
Sixth Circuit’s most recent decision is Scarbrough and there have been cases, both in other
circuits and the United States Supreme Court, that have showed a trend to giving homosexuals
such protection, the heavily conflicting case law in the Sixth Circuit would tend to show that
there is no “clearly established right.” The Courts have been all over the place with regard to
treating such claims for disparate treatment based on sexual orientation, so it would be difficult
to say that Defendant Bahhur knew, or should have known, that he was violating a clearly
established right.
Plaintiff points to the United States Supreme Court’s decision in Romer v. Evans, 517
U.S. 620 (1996) for the proposition that Defendants should have been on notice that their actions
violated Plaintiff’s “clearly established rights.” In Romer, the U.S. Supreme Court struck down a
Colorado state constitutional amendment that discriminated against Colorado citizens based on
their sexual orientation. Colorado voters adopted by statewide referendum “Amendment 2" to
the State Constitution, which would preclude all legislative, executive, or judicial action at any
level of state or local government designed to protect the status of persons based on their
“homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Id. at 620.
The Supreme Court stated: “If the constitutional conception of ‘equal protection of the laws
means anything, it must at the very least mean that a bare... desire to harm a politically unpopular
group cannot constitute a legitimate government interest.” Id. at 365.
Romer is distinguishable from the facts in the present case. Romer was decided outside
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of an employment context. There is no mention of Title VII throughout the entire opinion, which
this Court is required to implement in an employment discrimination analysis. See City of Salem,
Ohio, 378 F.3d 566 (6th Cir. 2004). Were the facts to show that this discrimination happened
outside of an employment context, the holding and analysis of Romer would serve to put
Defendants on notice that their actions were violating a “clearly established right,” as is required
to negate qualified immunity. However, there is no binding case law that would “clearly
establish” Plaintiff’s rights under this fact pattern, and as such, Defendants are entitled to
qualified immunity.1
2.
Monell claim fails for failing to plead sufficient plausible facts to show a
“policy” or “custom.”
Regardless of whether the Plaintiff has met her burden to plead a prima facie case of
disparate impact or violation of her equal protection rights under § 1983, Plaintiff fails to state a
claim upon which relief can be granted with regard to Defendant City of Cleveland. Defendants
argue that a municipality can only be held liable under § 1983 if Plaintiff alleges that she suffered
harm as a direct result of the Defendant’s “official policy or custom.” Slusher v. Carson, 540
F.3d 449, 456-57 (6th Cir. 2008), citing Monell v. New York City Dept. of Soc. Servs., 436 U.S.
658, 694-95 (1978). More specifically, Defendant City of Cleveland argues that it can only be
held liable if the Plaintiff alleges “an unconstitutional action that ‘implements’ or executes a
policy statement, ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers...” Shamaeizadeh, 338 F.3d at 556 (quoting Monell). Defendants argue that
1
As the Court stated in its analysis above, the Court finds that Glover is not
binding on this Court, and, in the alternative, the Court believes the analysis
proffered in Glover is fundamentally incorrect.
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Plaintiff has failed to allege any facts that could be interpreted to show that Defendant City of
Cleveland had a policy or custom of discriminating against homosexuals.
Although it is not dispositive of Plaintiff’s § 1983 claim, Plaintiff has failed to allege that
Defendant Bahhur has final policy-making authority. Any discriminatory acts Defendant Bahhur
engaged in cannot be imparted upon the City. City of St. Louis v. Praprotnik, 485 U.S. 112
(1998). Rather, Plaintiff must identify the policy, connect the policy to the Defendant City and
Defendant Bahhur, and show that her constitutional injury resulted from the carrying out of the
policy. Bruederle v. Louisville Metro Government, 687 F.3d 771, 777 (6th Cir. 2012).
Here, Plaintiff alleges that Defendant City had:
[E]ngaged in a systematic pattern and practice of sexual orientation discrimination,
and retaliation, by, inter alia, fabricating policy/procedure violations allegedly
committed by employees who are sexually oriented to members of their own sex, but
not by employees who are sexually oriented to members of the opposite sex; refusing
to enforce practices that have the effect of discriminating against employees on the
basis of their sexual orientation by enforcing policies and disciplinary procedures
against employees who are sexually oriented towards members of their own sex, but
not towards employees who are sexually oriented towards members of the opposite
sex; and retaliating against employees who are sexually oriented towards members
of the same sex who complain about or report discrimination.
Plaintiff’s allegations are conclusory statements, unsupported by the facts alleged in this
Complaint.
While Plaintiff’s situation could plausibly lead to the conclusion that her own
constitutional rights have been violated by Defendant City, facts regarding her situation alone do
not rise to the level of a “policy” or “custom” of the Defendant City. There is no factual
recitation that Defendant City has habitually discriminated against homosexuals in a similar
fashion that the Plaintiff alleges. Without such recitals, we have an isolated incident of alleged
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discrimination and disparate impact that cannot, in itself, rise to the level of policy or custom.
Plaintiff has failed to properly identify any well-established policy or custom of Defendant City
to discriminate against homosexuals, and her claim against Defendant City under § 1983 must
fail accordingly.
IV. CONCLUSION
Defendant’s Motion to Dismiss is granted. The Court declines to exercise its
supplemental jurisdiction over Plaintiff’s state-law claims and remands Plaintiff’s state law
claims to Cuyahoga County Court of Common Pleas for further adjudication.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: November 19, 2012
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