Zickes v. Cuyahoga County et al
Opinion & Order signed by Judge James S. Gwin on 3/10/16 granting in part and denying in part the motion for judgment on the pleadings of defendants Cuyahoga County, Cuyahoga County Executive, Michael Carroll and Bryan Smith for the reasons se t forth in this order. The Court dismisses defendants Cuyahoga County and Cuyahoga Executive as well as claims for relief as to intentional infliction of emotional distress, and under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment. (Related Doc. 20 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CUYAHOGA COUNTY et al.,
CASE NO. 1:15-CV-1865
OPINION & ORDER
[Resolving Doc. 20]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On September 11, 2015, Plaintiff Joseph Zickes filed a complaint alleging violations of
his rights under the First, Fourth, Fifth, Sixth, Eighth, and/or Fourteenth Amendments to the U.S.
Constitution.1 Plaintiff Zickes named Bryan Smith, Michael Carroll, Lucy Rodriguez, Cuyahoga
County, and the Cuyahoga County Executive as Defendants. Plaintiff Zickes filed an amended
complaint on November, 3, 2015. 2 On November 17, 2015, Defendants Carroll, Smith,
Cuyahoga County, and Cuyahoga County Executive filed a motion for judgment on the
pleadings. 3 For the reasons below this Court GRANTS in part and DENIES in part the
motion for judgment on the pleadings. 4
Plaintiff Zickes formerly worked for the Cuyahoga County Sheriff’s Department. Zickes
claims Defendants forced him into early retirement because Zickes engaged in protected union
This court raised the issue of jurisdiction sua sponte and requested positional statements from the parties
addressing whether the Ohio State Employment Relations Board has exclusive jurisdiction over the instant case and
how this Court would have federal jurisdiction over this case. Doc. 30. The parties complied. Docs. 31, 32, 33. This
Court agrees with the parties that it has jurisdiction because the complaint alleges only federal law claims. See
Risner v. Tri-County Regional Jail, 2001 WL 1253593, No. 2:09-cv-609 (S.D. Ohio March 26, 2010) (holding that
O.R.C. 4117 claims do not preempt federal law jurisdiction).
activities. In the complaint, Zickes names the following defendants: Cuyahoga County and the
County Executive, Lt. Bryan Smith, Sgt. Michael Carroll, and Lucy Rodriguez. 5
Zickes states that he was elected steward of the Ohio Patrolmen’s Benevolent Association
(“OBPA”), sheriff’s Deputy Bargaining Unit. 6 According to Zickes, Defendant Smith then began
pressuring Zickes to lobby OPBA bargaining unit members to transfer their sick time to
Lieutenant Miguel Carabello, a member of the lieutenants’ bargaining unit who had no more sick
time available to him. 7 When Zickes refused, Smith allegedly began to retaliate and harass
For example, Smith allegedly began to criticize Zickes for not wearing his collar brass
correctly and accused him of arriving late to work. 8 Smith allegedly threatened Zickes with
administrative suspension. 9 On February 6, 2012 Smith reassigned Zickes to another position. 10
On April 3, 2012, Smith again reassigned Zickes. 11 On April 12, 2012, Smith initiated an official
sheriff’s investigation against Zickes into the use of the OPBA union bulletin board because of a
handwritten note Zickes left on the board. 12 Zickes also says he was subjected to an Inspector
General’s investigation due to allegations of harassment brought by Smith’s fiancée Rodriguez. 13
Zickes alleges that in January 2013, Smith prohibited Zickes from attending a member’s
grievance hearing against Defendant Sergeant Carroll. 14 Carroll told Zickes that Zickes was
under an official sheriff’s investigation for leaving his lunch bag over night in the sixth floor jury
Rodriguez has filed a separate motion for judgment on the pleading. Doc. 22.
Doc. 15 ¶ 14.
Id. at ¶ 18.
Id. at ¶ 26, 28.
Id. at ¶ 28.
Id. at ¶ 30.
Id. at ¶ 33.
Id. at ¶ 34.
Id. at ¶ 36.
Id. at ¶ 44.
vestibule room. 15 Zickes says that on March 20, 2013, Carroll prevented Zickes from attending a
labor management meeting. 16 On March 29, 2013, Carroll refused to allow Zickes to attend a
training. 17 Zickes says he was forced to retire on November 30, 2014. 18
On a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c),
the Court employs the same standard as a motion to dismiss for failure to state a claim upon
which relief can be granted under Rule 12(b)(6) 19 Thus, “‘[f]or purposes of a motion for
judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing
party must be taken as true, and the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.’” 20
As an initial matter, in his opposition, Zickes agrees with Defendants that the County
Executive and Cuyahoga County should be dismissed from this case. 21 Thus, this Court
DISMISSES the County Executive and Cuyahoga County as defendants in this suit.
That leaves the claims against Michael Carroll and Bryan Smith. 22 In seeking judgment,
Defendants Smith and Carroll argue that 1) all of Plaintiff’s claims are time barred by the
Id. at ¶ 47.
Id. at ¶ 48.
Id. at ¶ 52.
Id. at ¶56.
See Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008).
Doc. 25 at 14.
Defendant Lucy Rodriguez filed a separate motion for judgment on the pleadings. Doc. 22.
applicable statute of limitations, and 2) Plaintiff fails to state a claim upon which relief may be
granted against the answering Defendants on any of Plaintiff’s claims. 23
Statute of Limitations
Defendants argue that Plaintiffs’ claims are time-barred. This Court agrees with Plaintiff
that because his retirement on November 30, 2014 is alleged as a constructive discharge, the
claims are not time barred. In Meyers v. City of Cincinnati, our sister district found that plaintiffs
are “not barred from alleging a constructive discharge in order to establish [their] claims under
§1983.” Here, as in Meyers, “plaintiff is not bringing a constructive discharge claim per se, but is
alleging a constructive discharge as a predicate to his §1983 claims.” 24
Defendants argue that Plaintiff Zickes did not sufficiently plead a constructive discharge
claim. As the Supreme Court has explained, “federal pleading rules call for ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ . . . ; they do not
countenance dismissal of a complaint for imperfect statement of the legal theory supporting the
claim asserted.” 25
This Court acknowledges that Plaintiff did not perfectly plead the constructive discharge
theory. However, in the prologue overview of the amendment complaint, Plaintiff Zickes
asserted “this case involves the forced, early retirement of former Cuyahoga County Deputy
Sheriff Joseph Zickes . . .” 26 Zickes also states “Zickes was forced to retire early on November
30, 2014” under the Count for Violation of First Amendment Protected Union Activities. 27
As the Meyers court explained, “The United States Court of Appeals for the Sixth Circuit has implicitly
recognized that the issue of constructive discharge may arise outside the context of § 2000e. See Kreis, 833 F.2d 74
(law of constructive discharge applied in ERISA case to determine number of participants involuntarily excluded
from ERISA plan).” Meyers v. City of Cincinnati, 728 F. Supp. 477, 482 (S.D. Ohio 1990) aff'd in part, rev'd in
part, 934 F.2d 726 (6th Cir. 1991).
Johnson v. City of Shelby, Miss., 135 S. Ct. 346 (2014) (finding that no heightened pleading rule requires plaintiffs
seeking damages for violations of constitutional rights to invoke §1983 expressly in order to state a claim.).
Plaintiff’s §1983 claim describes the constructive discharge as Zickes’ injury. Therefore,
the two-year statute of limitations begins to run when Zickes knew or had reason to know of his
constructive discharge. Zickes retired on November 30, 2014, so that is an appropriate date to
start the clock for limitations purposes. As such, Zickes’ First Amendment claim, originally filed
on September 11, 2015, is not time barred.
Failure to State a Claim
This Court agrees that Plaintiff does not plead sufficient facts to support plausible claims
for relief on his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment claims. Plaintiff does
not plead these claims as separate counts and offers no factual basis for why these claims should
As to the intentional infliction of emotional distress claim, this Court agrees with the
authority in our district that “if a party wants to bring an action for intentional infliction of
emotional distress, it must be cited as a separate and independent count in a complaint and not by
mere reference to emotional distress in a count.” 28
Thus, Plaintiff’s claims for relief as to intentional inflection of emotional distress, and
alleged Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment claims are DISMISSED.
Morgan v. Hustler Magazine, Inc., 653 F. Supp. 711 (N.D. Ohio 1987).
For the reasons above, this Court GRANTS in part and DENIES in part the motion for
judgment on the pleadings. This Court DISMISSES Defendants Cuyahoga County and
Cuyahoga Executive as well as claims for relief as to intentional infliction of emotional distress,
and under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment.
IT IS SO ORDERED.
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: March 10, 2016
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