Bielozer et al v. City of North Olmsted et al

Filing 76

Memorandum Opinion and Order: This matter is before the Court upon Defendants' Motion to Dismiss Counts Seven, Eight, Nine, Eleven, and All Claims Against Defendants Victor Branscum, Cheryl Farver, and Lisa Kidd in Plaintiffs' Amended Complaint (Doc. 54 ). The motion is GRANTED IN PART and DENIED IN PART. Judge Patricia A. Gaughan on 3/5/15. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Brian Bielozer, et al.,
Plaintiffs,
vs.
City of North Olmsted, et al.,
Defendants.

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CASE NO. 1:14 CV 1160
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon Defendants’ Motion to Dismiss Counts Seven,
Eight, Nine, Eleven, and All Claims Against Defendants Victor Branscum, Cheryl Farver, and
Lisa Kidd in Plaintiffs’ Amended Complaint (Doc. 54). This case arises from plaintiff’s
employment with defendant North Olmsted. For the reasons set forth below, the motion is
GRANTED IN PART and DENIED IN PART.
Facts
Plaintiffs, Brian Bielozer (“plaintiff”) and Lisa Bielozer, filed this lawsuit against
defendants, City of North Olmsted (“City”), Jamie P. Gallagher, Charles Fioritto, Ronald
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Cox, Scott Thomas, Victor Branscum, Cheryl Farver, and Lisa Kidd alleging wrongdoing in
connection with plaintiff’s employment as a police officer with the City.
For purposes of ruling on the present motion, the facts alleged in the First Amended
Complaint (“complaint”) are presumed true.
Plaintiff alleges that he was employed as a law enforcement officer from September
21, 1998 until his discharge on November 27, 2013. According to the complaint, defendant
Gallagher was plaintiff’s boss. After an incident in which plaintiff suggested that Gallagher
alter the grip on his firearm, Gallagher began harassing plaintiff. Plaintiff claims that
Gallagher instituted multiple internal investigations against plaintiff and informed plaintiff
that Gallagher was going to “target” plaintiff for severe disciplinary action.
Plaintiff further alleges that in 2012 he took medical leave as a result of knee surgery.
Upon plaintiff’s return to work, Gallagher continued to harass plaintiff. Plaintiff claims that
Gallagher denied his request to return to work full time, despite his medical clearance. In
early January 2013, Gallagher removed plaintiff from two specialized positions.
In April 2013, plaintiff suffered significant injuries that he sustained in a work related
automobile accident. Plaintiff again required medical leave. While on leave, plaintiff alleges
that Gallagher entered his property without permission and took pictures of plaintiff and his
family. In late April, defendant Branscum reported to defendant Cox, who in turn relayed the
information to Gallagher, that plaintiff was shoveling and spreading mulch while on sick
leave. This information was false. Plaintiff alleges that defendant Farver was the source of
the false information.
Plaintiff further alleges that defendants Thomas, Farver, and Kidd provided false

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information to CareWorks, the organization handling plaintiff’s work related injury claim.
Plaintiff returned to work but then took further medical leave from May through
August of 2013 due to anxiety suffered as a result of harassment at work. While on leave, the
City initiated multiple investigations against plaintiff. Upon plaintiff’s return to work, the
City agreed to suspend the internal investigations provided plaintiff did not commit any
additional violations. On or about October 9, 2013, defendants Fioritto and Cox furnished
false and misleading information regarding plaintiff to Ohio’s Law Enforcement Automated
Data System (“LEADS”). The following day, the City placed plaintiff on involuntary leave
for alleged violations of the LEADS system. However, these alleged violations occurred
prior to plaintiff’s return to work and, therefore, were not “additional violations.”
Ultimately, the City terminated plaintiff’s employment and this lawsuit followed. The
complaint contains fifteen claims for relief. Counts one and two allege claims for trespass
and invasion of privacy. Count three is a claim for violation of 42 U.S.C. § 1983. Count four
is a claim for defamation. Counts five, six, and seven allege false light invasion of privacy,
intentional infliction of emotional distress, and breach of contract, respectively. Counts eight
and nine are claims for promissory estoppel and fraud. Count ten asserts a claim for
retaliation in violation of the Family Medical Leave Act (“FMLA”) and count eleven is a
claim for interference in violation of the FMLA. Counts twelve and thirteen arise under
O.R.C. § 4112. Counts fourteen and fifteen are claims for loss of consortium and aiding and
abetting civil conspiracy, respectively.
This matter is before the Court upon defendants’ motion to dismiss, which plaintiff
opposes.

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Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of a
complaint. In order to survive a motion to dismiss, a complaint’s factual allegations must be
enough to raise a right to relief above the speculative level on the assumption that all of the
complaint’s allegations are true. Ass’n of Cleveland Firefighters v. City of Cleveland, Ohio,
502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555
(2007)). The complaint must contain sufficient factual material to state a claim “plausible on
its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “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. “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.” Id. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
Discussion
Counts Seven, Eight, and Nine
Defendants move to dismiss counts seven, eight, and nine of the First Amended
Complaint for the reasons set forth in their motion for judgment on the pleadings on these
claims in the original complaint. See Doc. 8. Plaintiff opposes the motion for the reasons
stated in the earlier opposition. See Doc. 12.
Plaintiff’s allegations on counts seven, eight, and nine in the First Amended
Complaint are the same as those presented in the original complaint and plaintiff does not
present any new argument as to why these claims can be maintained. For the reasons set forth

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more fully in the Court’s Order of September 9, 2014, the Court is without subject matter
jurisdiction on counts seven, eight, and nine and those claims are dismissed. (Doc. 17).
Count Two (Invasion of Privacy)
Farver and Branscum move to dismiss count two, which alleges invasion of privacy.
These defendants argue that the specific factual allegations in the complaint are directed only
at defendant Gallagher. According to defendants, plaintiff alleges that defendant Gallagher
came to his house and took pictures of his family. There are no similar allegations against
defendants Farver and Bransum.
Upon review, the Court finds that defendants’ motion must be denied. Paragraph 65
of the complaint contains the following allegation:
The actions of Ms. Farver, Detective Branscum, and Chief Gallagher of conducting
surveillance of plaintiffs’ property and lurking behind trees to take pictures of
[plaintiff and his family...constitute an invasion of privacy].
Although the Court acknowledges that earlier references in the complaint regarding
this incident are directed only at defendant Gallagher, the Court finds that the allegations in
Paragraph 65 are sufficient to state a claim for invasion of privacy against Farver and
Branscum.
Count Four (Defamation)
Kidd and Farver move to dismiss the defamation claim brought against them.
According to these defendants, the complaint does not identify any allegedly defamatory
statement made by them. Plaintiff argues that defendants cite no case law requiring them to
set forth the specific statement at issue. Rather, according to plaintiff, these defendants surely
can recall statements they made to CareWorks.

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Under Ohio law, a plaintiff alleging defamation must show that “a defendant
published defamatory and actionable statements to a third party who understood the
defamatory nature of the publication.” Hout v. City of Mansfield, 550 F. Supp. 2d 701, 747
(N.D. Ohio 2008) (citing Cooper v. Grace Baptist Church of Columbus, Ohio, Inc., 81 Ohio
App.3d 728, 612 N.E.2d 357, 362 (Ohio Ct.App.1992)). The elements of a defamation claim
include: (1) a false and defamatory statement; (2) unprivileged publication to a third party; (3)
“fault amounting at least to negligence on the part of the publisher;” and (4) actionability or
special harm caused by the statement. Harris v. Bornhorst, 513 F.3d 503, 522 (6th Cir. 2008)
(quoting Akron–Canton Waste Oil v. Safety–Kleen Oil Servs., 81 Ohio App.3d 591, 611
N.E.2d 955, 962 (Ohio Ct.App.1992)).
Upon review, the Court finds defendants’ argument to be well-taken. With regard to
defendants Kidd and Farver, plaintiff alleges only that defamatory statements were made. See,
First Am. Compl. ¶ 81 (“Lisa Kidd, acting at the direction of Ms. Farver and Mr. Thomas,
published false, defamatory and misleading statements to representatives of CareWorks
regarding Officer Bielozer.”). This is insufficient. See, e.g., Smith v. Board of Trustees
Lakeland Community College, 746 F. Supp. 2d 877, 903 (N.D. Ohio 2010) (“general assertion
that Defendants called her ‘defiant’ . . . does not give rise to a plausible defamation claim. As
Defendants correctly note, there are no allegations regarding to whom the alleged defamatory
statement was made or the context in which it was allegedly made.”). Because plaintiff fails
to even generally allege the content of the defamatory statements, the motion to dismiss is
granted as to defendants Kidd and Farver.
Count Eleven (FMLA Interference)

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All defendants seek to dismiss count eleven, plaintiff’s FMLA interference claim.
Defendants argue that plaintiff only vaguely identifies what actions interfered with plaintiff’s
FMLA rights and the complaint fails to specify what damages plaintiff suffered as a result of
their interference. In response, plaintiff argues that Sixth Circuit law provides that a plaintiff
need only comply with notice pleading requirements for FMLA claims.
Upon review, defendants’ motion is granted as to defendants Thomas and Kidd. With
regard to these two defendants, the only factual allegations that could conceivably relate to an
FMLA interference claim involve the alleged defamatory statements to CareWorks. See, First
Am. Compl. ¶ 36 (“By providing false and misleading information about [plaintiff] to
representatives of CareWorks, Defendants Farver, Thomas, and Kidd unlawfully interfered
with [plaintiff’s] exercise of his medical leave rights....”). As set forth above, however,
plaintiff fails to allege the content of any such statement. Therefore, for these same reasons,
plaintiff fails to state a claim against these defendants.
With regard to the other defendants, however, the complaint contains factual
allegations that could arguably be construed to relate to a claim for FMLA interference. For
example, plaintiff alleges that Gallagher came to his house and photographed his family while
he was on medical leave. Similarly, plaintiff alleges that defendants Bransum, Cox, and
Farver were involved in reporting false information regarding plaintiff’s activities while on
medical leave. Although somewhat more tenuous, plaintiff alleges that defendant Fioritto was
involved in supplying false LEADS information and participated in the decision to terminate
defendant’s employment. On the whole, the Court finds that plaintiff has stated a claim for
FMLA interference against these defendants.

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Conclusion
For the reasons set forth above, defendants’ motion is GRANTED IN PART and
DENIED IN PART. Counts seven, eight, and nine are DISMISSED. Count four is
DISMISSED against Kidd and Farver. Count eleven is DISMISSED against Thomas and
Kidd. The rest of the First Amended Complaint remains pending.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 3/5/15

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