Mishak v. Serazin et al
Memorandum Opinion & Order granting in part and denying in part defendants' 16 Partial Motion for judgment on the pleadings. Signed by Magistrate Judge Jonathan D. Greenberg on 2/7/2018. (S,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
MATTHEW A. MISHAK,
SCOTT F. SERAZIN, et al.,
CASE NO: 1:17CV1543
JONATHAN D. GREENBERG
MEMORANDUM OPINION &
This case is before the Court upon consent of the parties, entered October 10, 2017.
(Doc. No. 20.) Currently pending is Defendants City of Elyria and Scott F. Serazin’s Motion
for Partial Judgment on the Pleadings. (Doc. No. 16.) Plaintiff Matthew Mishak filed a Brief in
Opposition on October 17, 2017, to which Defendant replied. (Doc. No. 23, 25.)
For the following reasons, Defendants’ Motion (Doc. No. 16) is GRANTED IN PART
and DENIED IN PART as follows.
I. Procedural Background
On July 21, 2017, Plaintiff Matthew Mishak (“Plaintiff” or “Mishak”) filed a pro se
Complaint in this Court against Defendants Scott F. Serazin (Office of the Elyria Law Director,
in his individual and official capacities) and the City of Elyria, alleging various state and federal
claims arising from his demotion and eventual termination as prosecutor for the City of Elyria.
(Doc. No. 1.)
Defendants filed an Answer and Partial Motion for Judgment on the Pleadings on
September 8, 2017. (Doc. Nos. 10, 11.)
Mishak thereafter retained counsel and filed his First Amended Complaint on September
22, 2017. (Doc. No. 13.) Defendants’ Partial Motion for Judgment on the Pleadings was denied
as moot based on the filing of the First Amended Complaint. (Doc. No. 21.)
On October 3, 2017, Defendants filed a “Motion for Partial Judgment on the Pleadings
responsive to the Amended Complaint,” in which they seek judgment in their favor with respect
to six of Mishak’s twelve claims. (Doc. No. 16.) Mishak filed a Brief in Opposition on October
17, 2017, to which Defendants replied.1 (Doc. Nos. 23, 25.)
II. Factual Allegations
The First Amended Complaint contains the following factual allegations.
Plaintiff Mishak served over ten years in the public sector as a prosecuting attorney.
(Doc. No. 13 at ¶ 5.) At all times relevant to this action, Defendant Serazin served as the Law
Director for the City of Elyria. (Id. at ¶ 6.)
Mishak and Serazin worked together at the Lorain County Prosecutor’s Office from 2006
to 2011, where they became friends. (Id. at ¶ 10.) Mishak struggled with Attention Deficit
Hyperactivity Disorder (“ADHD”), and Serazin was aware of Mishak’s condition throughout his
employment with the City of Elyria. (Id.)
In 2010, Serazin decided to run for Law Director for the City of Elyria and asked Mishak
to manage his campaign, and Mishak accepted. (Id. at ¶ 11.) Serazin won and, as Law Director,
appointed Mishak to the salaried position of Chief Prosecutor for the City of Elyria, on January
3, 2012. (Id. at ¶ 12.) In 2012, Serazin caused Mishak to seek and receive appointment as
In addition, a Case Management Conference was conducted on October 12, 2017, at
which time certain case management deadlines were set. (Doc. No. 22.)
Prosecutor for the Village of Grafton. (Id. at ¶ 13.) This position was an hourly one, and had
been held by Mishak’s predecessor for many years. (Id.)
By early 2013, “it became clear that Serazin’s attitude towards Mishak changed in a
negative way.” (Id. at ¶ 14.) Mishak was allegedly placed under scrutiny unlike other staff
attorneys. (Id. at ¶ 15.) In addition, Serazin was verbally abusive and engaged in “harshly
criticizing behavior directly related to Mishak’s ADHD.” (Id. at ¶ 15.)
In mid-2013, Mishak became the subject of an ethics investigation by the Lorain County
Bar Association (subsequently resolved favorably to Mishak), which Serazin improperly
disclosed to the local press. (Id. at ¶ 16.) This ethics investigation had not at that point elicited a
probable cause finding and was ultimately dismissed for lack of probable cause. (Id.) Mishak
asserts Serazin’s disclosure of this confidential investigation to the local press was a “severe
violation of the Ohio Rules of Professional Conduct and evidenced his discriminatory animus
towards Mishak.” (Id.)
In December 2013, Serazin “demoted Mishak from Chief Prosecutor to Prosecutor,
reduced his pay, significantly modified Mishak’s job responsibilities, and removed Mishak from
his assigned courtroom.” (Id. at ¶ 17.)
In May 2014, Serazin circulated a policy regarding representation of “outside
jurisdictions,” which required Mishak to take personal or vacation time for work done for the
Village of Grafton, depending on “undelineated circumstances.” (Id. at ¶ 19.) Mishak claims
the policy was “vague and did not clearly indicate when outside work could and could not be
performed by City of Elyria Law Department Employees.” (Id.)
In July 2015, Serazin placed a letter in Mishak’s public personnel file, ostensibly aimed
at reprimanding Mishak for failing to file a notice of appearance in a case, but otherwise severely
criticizing Mishak’s honesty, integrity, respect for the law and accusing Mishak of “terrorist”
affiliations. (Id. at ¶ 20.)
On July 22, 2016, Serazin called Mishak to Serazin’s office with his Chief of Staff,
Amanda Deery, and discussed terminating Mishak from his employment for allegedly unjustly
enriching himself by “double dipping,” due to his representation of the Village of Grafton. (Id.
at ¶ 21.) Mishak was placed on paid suspension with time and billing to be reviewed. (Id. at ¶
22.) A physician’s letter regarding Mishak’s ADHD was requested by Serazin. (Id.) Serazin
formalized Mishak’s suspension with a twelve (12) page letter. (Id.)
Mishak supplied the requested letter from his physician to Serazin on August 1, 2016.
(Id. at ¶ 23.) At that time, Mishak notified Serazin of his need to take medical leave due to his
ADHD. (Id. at ¶¶ 129-130.) On August 2 or 3, 2016,2 Serazin terminated Mishak’s
employment. (Id. at ¶¶ 24, 131.)
On August 4, 2016, Serazin initiated contact with Ms. Lisa Roberson (“Roberson”), a
Chronicle-Telegram (local Elyria newspaper) reporter. (Id. at ¶ 25.) In an office interview,
Serazin told Roberson that Mishak was terminated for stealing from the City of Elyria and an
investigation was ongoing. (Id. at ¶ 26.) Serazin provided copies of Mishak’s suspension and
termination letters to Roberson. (Id.) Mishak alleges that, at that time, the termination letter had
yet to be delivered to him. (Id.) The suspension letter and termination letter contained a number
of statements which Mishak claims are “completely and wholly false and/or made with reckless
In paragraph 24 of the First Amended Complaint, Mischak states he was terminated on
August 2, 2016. Thereafter, in paragraph 131, he states he was terminated on August 3, 2016.
disregard for the truth.” (Id. at ¶¶ 25- 27.)
Mishak first learned of his dismissal on August 4, 2016, when Roberson called seeking a
comment. (Id. at ¶ 29.) On August 5, 2016, the front-page headline of the Chronicle Telegram
read “Elyria fires prosecutor; – ‘double dipping’ alleged – Law Director Says that Matt Mishak
did work for Grafton while on the clock for Elyria,” followed by the article about Roberson’s
interview with Serazin. (Id. at ¶ 30.)
Shortly thereafter, Serazin contacted the Village of Grafton and offered to have Elyria’s
Law Department assume the Village’s prosecutorial responsibilities. (Id. at ¶ 31.) Subsequent to
that contact, Mishak was relieved of his position with the Village of Grafton. (Id. at ¶ 32.)
Serazin also contacted the Lorain County Prosecutor’s Office, the Lorain County
Sheriff’s Office, and the Ohio Auditor’s Office and “published materially false statements in a
malicious action to damage Mishak’s good reputation.” (Id. at ¶¶ 38, 39, 40.)
Mishak filed Complaints with the EEOC for disability discrimination. (Id. at ¶ 34.) He
subsequently asked that they be dismissed and that he be issued a Right to Sue letter. (Id.) The
EEOC matter “has been dismissed at his request.” (Id.)
The First Amended Complaint asserts the following 12 claims: (1) defamation per se –
libel and slander (Count 1); (2) invasion of privacy– false light (Count 2); (3) malicious
prosecution under 42 U.S.C. § 1983 (Count 3); (4) abuse of process under 42 U.S.C. § 1983
(Count 4); (5) state and federal disability discrimination claims based upon alleged failure to
accommodate (Counts 5 and 6); (6) state and federal disability discrimination claims based upon
alleged disparate treatment (Counts 7 and 8); (7) state and federal retaliation claims (Counts 9
and 10); (8) retaliation claim under the Family & Medical Leave Act (Count 11); and (9) loss of
employment under 42 U.S.C. § 1983 (Count 12).
III. Standard of Review
Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the pleadings.” “For 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.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d
577, 581 (6th Cir. 2007) (internal citation and quotation marks omitted).
The same standard for deciding a Rule 12(b)(6) motion to dismiss for failure to state a
claim applies to a Rule 12(c) motion for judgment on the pleadings. See Roth v. Guzman, 650
F.3d 603, 605 (6th Cir. 2011). In order to survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than
‘formulaic recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to
relief above a speculative level.’ ” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488
(6th Cir. 2009) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief
above the speculative level—“does not ‘require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.’ ” Bassett v. National
Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S.
at 555–556, 127 S.Ct. 1955). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). Deciding whether a complaint states a claim for relief that is plausible is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679, 129 S.Ct. 1937.
Consequently, examination of a complaint for a plausible claim for relief is undertaken in
conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2)
requires only a short and plain statement of the claim showing that the pleader is entitled to
relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.’ ” Gunasekera v. Irwin, 551 F.3d 461,
466 (6th Cir. 2009) (quoting in part Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007)) (quoting Twombly, 127 S.Ct. at 1964). Nonetheless, while “Rule 8 marks
a notable and generous departure from the hyper-technical, code-pleading regime of a prior era
... it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
Section 1983 Claims
Mishak alleges a number of claims against Defendants pursuant to 42 U.S.C. § 1983. To
maintain a claim under Section 1983, a plaintiff must establish that he was deprived of a right
secured by the Constitution or the laws of the United States, and that the deprivation was caused
by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250,
101 L.Ed.2d 40 (1988); Simescu v. Emmet County Dep’t of Soc. Services, 942 F.2d 372, 374 (6th
Cir. 1991). Section 1983 “is not itself a source of substantive rights,” but merely provides “a
method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137,
144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The first step in any such claim is to identify the
specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989); Baker, 443 U.S. at 140.
Defendants move for judgment on the pleadings with respect to Mishak’s claims under
42 U.S.C. § 1983 for malicious prosecution (Count Three), abuse of process (Count Four), and
“loss of employment pursuant to the ADA and FMLA” (Count Twelve). (Doc. No. 16 at 7-16.)
The Court will discuss each of these claims in turn, below.
Malicious Prosecution (Count Three)
Count Three of First Amended Complaint (captioned “Section 1983- Malicious
Prosecution”) alleges “Defendant Serazin’s conduct violated Mishak’s right to be free of
unlawful governmental seizures, such as that implemented here when subjecting Mishak to
malicious prosecution, and therefore violates Federal law and/or the Constitution of the United
States.” (Doc. No. 13 at ¶ 62.) Mishak further asserts as follows:
64. Serazin showed malice in instituting or continuing the prosecution against
Mishak by alleging to the Lorain County Prosecutor, Lorain County Sheriff and the
Auditor for the State of Ohio, that Mishak had committed criminal violations.
65. Serazin lacked probable cause to believe Mishak had committed crimes, at all
time relevant herein * * *
66. Serazin abused the power of his public office and violated the Ohio Rules of
Professional Conduct by making extrajudicial comments to the press that had a
substantial likelihood of heightening public condemnation of Mishak, depriving
Mishak of procedural due process as protected under Federal Law and/or the
Constitution of the United States.
67. Said prosecution instituted by Serazin was needlessly protracted.
69. The City of Elyria and Serazin engaged in the above-described actions
recklessly, maliciously, and intentionally entitling Mishak to an award of statutory,
compensatory, and other damages.
(Id. at ¶¶ 64-69.)
To succeed on a malicious prosecution claim under § 1983 when the claim is premised on
a violation of the Fourth Amendment, a plaintiff must prove the following elements. First, the
plaintiff must show a criminal prosecution was initiated against the plaintiff and the defendant
made, influenced, or participated in the decision to prosecute. Sykes v. Anderson, 625 F.3d 294,
308 (6th Cir. 2010). See also Martin v. Maurer, 581 Fed. Appx. 509, 511 (6th Cir. 2014); Fox v.
DeSoto, 489 F.3d 227, 237 (6th Cir. 2007); McKinley v. City of Mansfield, 404 F.3d 418, 444
(6th Cir. 2005); Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001); Skousen v.
Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002). Second, because a § 1983 claim is
premised on the violation of a constitutional right, the plaintiff must show there was a lack of
probable cause for the criminal prosecution. See Sykes, 625 F.3d at 308; Fox, 489 F.3d at 237;
Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 675 (6th Cir. 2005). Third, the plaintiff
must show that, as a consequence of a legal proceeding, the plaintiff suffered a “deprivation of
liberty,” as understood in our Fourth Amendment jurisprudence, apart from the initial seizure.
Sykes, 625 F.3d at 309. Fourth, the criminal proceeding must have been resolved in the
plaintiff's favor. Id. See also Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994) (“One element that must be alleged and proved in a malicious prosecution
action is termination of the prior criminal proceeding in favor of the accused.”). See also
Williams v. Schismenos, 258 F.Supp.3d 842, 859 (N.D. Ohio 2017).
Defendants argue judgment should be granted in their favor with respect to this claim
because “nowhere does plaintiff allege he was actually delayed, charged with any crime,
indicted, arrested, or tried for any crime.” (Doc. No. 16 at 7-8.) Defendants assert Mishak’s
allegations, therefore, fail as a matter of law to state a claim for malicious prosecution and
judgment should be entered their favor.
In his Brief in Opposition, Mishak requests the Court dismiss this claim without
prejudice. (Doc. No. 23 at 8.) He argues Defendant Serazin instigated an investigation by the
Ohio Auditor, which “has the power to institute criminal charges if it finds issue with any
investigation into funding.” (Id.) Mishak asserts “that investigation is still ongoing, preventing
Plaintiff from pleadings facts sufficient at this time to sustain the claim.” (Id.) Thus, he asks the
Court to dismiss Count Three without prejudice and allow him to amend his Complaint “when
these claims do become ripe at a later date.” (Id. at 3.)
In their Reply Brief, Defendants state only that: “Plaintiff concedes he has, currently,
failed to allege facts which would sustain [a claim for malicious prosecution], and that the claim
should, therefore, be dismissed.” (Doc. No. 25 at 1.) Defendants do not appear, however, to
oppose Mishak’s request that this claim be dismissed without prejudice.
The Court finds it would be appropriate to dismiss Mishak’s Section 1983 malicious
prosecution claim without prejudice. Mishak argues, and Defendants do not contest, there
remains the potential a malicious prosecution claim might exist depending on the outcome of the
Ohio Auditor’s investigation. Under these circumstances, the Court finds it would be premature
to dismiss this claim without permitting Mishak an opportunity to seek leave to amend his First
Amended Complaint once the investigation is concluded. See e.g., Thornsbury v. Crowe, 2015
WL 163476 at * 3 (S.D. Ohio Jan. 13, 2015) (dismissing plaintiff’s malicious prosecution claim
without prejudice where potential remained for criminal charge to be brought against her).
Accordingly, Mishak’s claim of malicious prosecution under Section 1983 is dismissed
Abuse of Process (Count Four)
In Count Four of the First Amended Complaint (captioned “Section 1983– Abuse of
Process”), Mishak states as follows:
71. If this Honorable Court happens to find that a legal proceeding against
Mishak, in the form of reports made by Serazin to the Lorain County Prosecutor,
Lorain County Sheriff, and Auditor of the State of Ohio, have been set in motion
in proper form and with probable cause, Mishak alleges the following.
72. Serazin subjected Mishak to conduct that occurred under color of state law.
73. Serazin’s conduct deprived Mishak of procedural due process guaranteed
under Federal Law and/or the Constitution of the United States.
74. That the proceeding instituted by Serazin against Mishak has been perverted
to attempt to accomplish an ulterior purpose for which it was not designed, to
wit: retaliate against Mishak, interfere with his employment, and harm his good
and longstanding reputation in the community.
75. That direct substantial damage has resulted to Mishak from Serazin’s
wrongful use of process and that Mishak was obliged to defend himself and to
expend money and time in his defense; that he lost time previously devoted to his
professional business, from the ordinary pursuits in his life and home, and that
the quality of his life was diminished by it, all to his great damage.
76. The City of Elyria and Serazin engaged in the above-described actions
recklessly, maliciously, and intentionally entitling Mishak to an award of
statutory, compensatory, and other damages.
(Doc. No. 13 at ¶¶ 71-76.)
Defendants argue judgment should be entered in their favor with respect to this claim
because the Sixth Circuit does not recognize a cause of action for abuse of process under Section
1983. (Doc. No. 16 at 11.)
Mishak argues this claim should be dismissed without prejudice because “like Plaintiff’s
claim for malicious prosecution, [it] is predicated upon Defendant Serazin’s unjust use of the
State Auditor’s office to launch an investigation against Plaintiff.” (Doc. No. 23 at 9.) Because
that investigation has not yet concluded, Mishak asserts he was “unable to plead facts showing
there was no finding of probable cause that [he] did anything illegal and is otherwise not able at
this time to show the full extent of the wrongful perversion of the instituted process.” (Id. at 910.) Accordingly, Mishak maintains this claim is “not ripe,” and should be dismissed without
Mishak’s argument is without merit. The Sixth Circuit “has consistently declined to
recognize an abuse of process claim under 42 U.S.C. § 1983.” Moore v. WesBanco Bank, Inc.,
612 Fed. Appx. 816, 823 (6th Cir. May 21, 2015.) See also Rapp v. Dutcher, 557 Fed. Appx.
444, 448 (6th Cir. 2014) (“[A] federal abuse of process claim does not exist in the law of this
circuit.”); Schuler v. Village of Newcomerstown, et al., 2017 WL 1199170 at * 7 (N. D. Ohio
Mar. 31, 2017); Conrad v. Berea, 2017 WL 1050389 at * 6 (N.D. Ohio Mar. 20, 2017); Haley v.
Gilbride, 2014 WL 3789563 at * 8-9 (N.D. Ohio July 31, 2014). In opposing the motion,
Mishak has not directed this Court’s attention to any legal authority showing an abuse of process
claim is cognizable under § 1983 in this Circuit.3 Thus, there is no basis for dismissal of
Mishak’s federal abuse of process claim without prejudice.
Defendants’ motion for judgment on the pleadings with respect to this claim is, therefore,
The sole case cited by Mishak, Hahn v. Star Bank, 190 F.3d 708, 718 (6th Cir. 1999), is
not applicable. In that case, the Sixth Circuit considered a claim for abuse of process under Ohio
law. Id. at 718. Here, Mishak’s First Amended Complaint clearly pleads the abuse of process
claim as arising under federal law; i.e., Section 1983.
“Loss of Employment under the ADA and OCRA” (Count Twelve)
In Count Twelve of the First Amended Complaint, Mishak asserts a claim for “loss of
employment protected under the ADA and FMLA.” (Doc. No. 13 at p. 21.) Specifically, he
asserts “Serazin and the City of Elyria’s conduct deprived Mishak of rights, privileges,
immunities, and due process guaranteed under Federal law and/or the Constitution of the United
States, namely terminating Mishak’s employment for protected reasons.” (Id. at ¶ 137.)
Defendants argue judgment should be entered in their favor with respect to this claim
because “neither the ADA nor the FMLA may form the premise for a Section 1983 claim.” (Doc.
No. 16 at 13.)
In his Brief in Opposition, Mishak states as follows: “After reviewing Defendants’
argument and cited case law as to this Claim, Plaintiff does not contest that its twelfth cause of
action, Section 1983- loss of employment protected under the ADA and FMLA, should be
dismissed.” (Doc. No. 23 at 12.)
Accordingly, Defendants’ motion for judgment on the pleadings with respect to this
claim is granted.
Disparate Treatment Claims under the ADA and OCRA
Defendants also move for judgment on the pleadings with respect to Mishak’s disability
discrimination claims based on disparate treatment. In the Seventh and Eighth Counts of the
First Amended Complaint, Mishak states claims for disparate treatment disability discrimination
under the Americans with Disabilities Act (“ADA”) and Ohio Civil Rights Act (“OCRA”).
(Doc. No. 13 at ¶¶ 96-113.) Mishak’s ADA claim, Count Seven, alleges as follows:
96. Mishak incorporates and restates each of the above paragraphs as if fully set
97. Mishak, at all times relevant, is a disabled individual as defined in 42 U.S.C.
§1201, et. seq., had a history of said disability, and was regarded as such by his
98. The City of Elyria engaged in disparate treatment of Mishak versus other
similarly-situated employees without disabilities.
99. The City of Elyria scrutinized the time records of Mishak from both the City
of Elyria and Village of Grafton, filing a public records request with Village
100. The City of Elyria failed to investigate the time records for two other Elyria
City Prosecutors who also represented other Jurisdictions.
101. Scott Strait is a full-time City of Elyria Prosecutor who also represented the
Village of LaGrange in the capacity of Prosecutor.
102. Michelle Nedwick is a full-time City of Elyria Prosecutor who also
represented the City of South Amherst in the capacity of Law Director.
103. The City of Elyria failed to scrutinize the record of these similarly-situated
employees without disabilities.
104. The City of Elyria engaged in the above-described actions recklessly,
maliciously, and intentionally entitling Mishak to an award of statutory,
compensatory, and other damages.
(Id. at ¶¶ 96-104.) Mishak’s state law claim under the OCRA contains the same factual
allegations, alleging a claim under Ohio Rev. Code § 4112.01 et seq. (Id. at ¶¶ 105-113.)
To recover on a claim for discrimination under the ADA, a plaintiff must show that he (1)
is disabled, (2) otherwise qualified to perform the essential functions of the position, with or
without accommodation, and (3) suffered an adverse employment action because of his
disability. See Ferrari v. Ford Motor Company, 826 F.3d 885, 891 (6th Cir. 2016); Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 317, 321 (6th Cir. 2012) (en banc); Holiday v.
Chattanooga, 206 F.3d 637, 642 (6th Cir. 2006). A plaintiff may do so “by introducing direct
evidence of discrimination, including evidence that the employer relied upon the plaintiff's
disability in making its employment decision, or by introducing indirect evidence of
discrimination.”4 Ferrari, 826 F.3d at 891. Ohio's disability-discrimination statute and the ADA
employ the same analysis. See Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 872 (6th Cir.
2007); Wolfe v. U.S. Steel Corp., 567 Fed. Appx. 367, 371 (6th Cir. June 2, 2014). See also
Sessin v. Thistledown Racetrack, LLC, 187 F.Supp.3d 869, 875 (N.D. Ohio 2016) (“According to
the Sixth Circuit, disability discrimination claims under the ADA and O.R.C. § 4112.02 can both
be analyzed solely under the ADA.” )(citing Brenneman v. MedCentral Health Sys., 366 F.3d
412, 418 (6th Cir. 2004)).
Defendant claims Mishak’s federal and state disparate treatment claims should be
If there is direct evidence a plaintiff suffered an adverse employment action because of
his or her disability, the plaintiff then “bears the burden of establishing that he or she is
‘disabled’ ” and “ ‘otherwise qualified’ for the position despite his or her disability: a) without
accommodation from the employer; b) with an alleged ‘essential’ job requirement eliminated; or
c) with a proposed reasonable accommodation.” Ferrari, 826 F.3d at 891. Once the plaintiff has
established these elements, the employer “bear[s] the burden of proving that a challenged job
criterion is essential ... or that a proposed accommodation will impose an undue hardship upon
the employer.” Id. By contrast, the indirect method adapts the McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting framework. Under
that framework, a plaintiff must first establish a prima facie case of discrimination by showing
that (1) he or she is disabled, (2) he or she is otherwise qualified for the position, with or without
reasonable accommodation, (3) he or she suffered an adverse employment decision, (4) the
employer knew or had reason to know of the plaintiff's disability, and (5) the position remained
open while the employer sought other applicants or the disabled individual was replaced.
Ferrari, 826 F.3d at 891-892. See also Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir.
2011). Once the plaintiff establishes a prima facie case under the indirect method, the burden
shifts to the defendant to “offer a legitimate explanation for its action.” Ferrari, 826 F.3d at 892.
If the defendant does so, the burden then shifts back to the plaintiff, who “must introduce
evidence showing that the proffered explanation is pretextual.” Id.
dismissed because the sole basis of these claims is that Defendants allegedly “scrutinized the
time records of Mishak” but did not look at the time records of other employees. Defendants
assert “as a matter of law, an employer’s actions in investigating the conduct of an employee
does not, without more, rise to the level of an adverse employment action that will support a
claim for disparate treatment.” (Doc. No. 16 at 12.)
Mishak argues Defendants’ motion should be denied because “Defendants rely upon the
erroneous argument” the only adverse employment action supporting these claims is that
Mishak’s “time records were more heavily scrutinized than his coworkers.” (Doc. No. 23 at 10.)
To the contrary, Mishak asserts he expressly incorporated his entire statement of facts into
Counts Seven and Eight, which “highlight many adverse employment actions” including: (1) the
increased scrutiny of his time records; (2) the more stringent enforcement against Mishak of the
policy regarding representation of “outside jurisdictions;” and (3) Mishak’s termination for
working for different municipalities despite the fact other City of Elyria Law Department
employees similarly worked for other municipalities.
The Court finds Mishak has sufficiently pled claims for disparate treatment disability
discrimination under the ADA and OCRA, including that he suffered an “adverse employment
action” because of his disability. The Sixth Circuit has explained an “adverse employment
action” is one that creates a “materially adverse change in the terms or conditions of
employment.” Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996). See also
Hurtt v. International Services, Inc., 627 Fed. Appx. 414, 429 (6th Cir. Sept. 14, 2015); Sessin,
187 F.Supp.3d at 875. A materially adverse change includes “termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.” Sessin, 187 F.Supp.3d at 875.
Here, Counts Seven and Eight of the First Amended Complaint allege that, at all times
relevant herein, Mishak (1) was a disabled individual as defined in 42 U.S.C. § 1201 et seq. due
to his ADHD; (2) “had a history of said disability,” and (3) “was regarded as such by his
employer.” (Doc. No. 13 at ¶¶ 97, 106.) The Complaint then alleges Defendants subjected
Mishak to disparate treatment “versus other similarly-situated employees without disabilities.”
(Id. at ¶¶ 98, 107.) While the specific paragraphs under Counts Seven and Eight make particular
reference to the alleged increased scrutiny of Mishak’s time records as compared to other
similarly situated Elyria City Prosecutors, Mishak correctly notes both Counts expressly
“incorporate and restate each of the above paragraphs [of the First Amended Complaint] as if
fully set forth herein.” (Id. at ¶¶ 96, 105.) Previous paragraphs in the First Amended Complaint
allege several adverse employment actions allegedly taken against Mishak as a result of his
Specifically, earlier in the First Amended Complaint, Mishak alleges he was “placed
under scrutiny unlike other staff attorneys” and subjected to “harshly criticizing behavior
directly related to Mishak’s ADHD.” (Id. at ¶ 15.) The Amended Complaint asserts that, in
December 2013, Defendant Serazin “demoted Mishak from Chief Prosecutor to Prosecutor,
reduced his pay, significantly modified Mishak’s job responsibilities, and removed Mishak from
his assigned courtroom.” (Id. at ¶ 17.) Mishak claims Defendant Serazin later circulated a
policy regarding representation of “outside jurisdictions,” “which required Mishak to take
personal or vacation time for work done for the Village of Grafton, depending on undelineated
circumstances.” (Id. at ¶ 19.) The Amended Complaint alleges that, in July 2016, Defendant
Serazin accused Mishak of “double dipping” due to his representation of the Village of Grafton
and placed him on paid suspension with “billing to be reviewed.” (Id. at ¶¶ 22-22.) Mishak was
thereafter terminated on August 2 or 3, 2016. (Id. at ¶¶ 24, 131.) The Court finds these
allegations, read as a whole, sufficiently plead that Mishak suffered an “adverse employment
action” because of his disability for purposes of his disparate treatment disability discrimination
In their Reply Brief, Defendants assert these claims should nonetheless be dismissed
because Mishak fails to allege any other similarly situated individuals “were engaging in the
same double-billing conduct” as Mishak, but were not punished. (Doc. No. 25 at 7-8.) This
argument is without merit. As Defendants are well aware, Mishak alleges he did not engage in
“double billing conduct,” stating such accusations are “completely and wholly false and/or made
with reckless disregard for the truth.” (Id. at ¶ 27.)
Accordingly, and for all the reasons set forth above, Defendants’ Motion for Judgment on
the Pleadings with respect to Counts Seven and Eight is denied.
Invasion of Privacy– False Light
Lastly, Defendants move for judgment on the pleadings with respect to Mishak’s state
law claim for false light invasion of privacy. In Count Two of the First Amended Complaint,
Mishak alleges as follows:
52. Serazin purposely summoned the press to his office and purposely provided
Roberson with the suspension letter and termination letter, both drafted by Serazin,
containing many false and defamatory statements about Mishak, thereby giving
great publicity to these statements with their subsequent publication in the Article
on the front page of the Chronicle Telegram newspaper and on the internet and
allowing said statements to be read, on an ongoing basis, by a large number of
53. Serazin’s statements placed Mishak before the public in a false light,
54. Serazin’s statements are highly offensive to a reasonable person; and
55. Serazin was at fault and knew or was reckless to the falsehood of the
56. Serazin’s conduct in publishing the aforementioned false statements was
knowing, malicious, willful and wanton and/or showed a reckless disregard for
Mishak, which has caused and continues to cause Mishak to suffer substantial
economic and non-economic damages, permanent harm to his professional and
personal reputation, and severe mental anguish and emotional distress.
(Doc. No. 13 at ¶¶ 52-56.)
The Ohio Supreme Court first recognized the tort of false light invasion of privacy in
Welling v. Weinfeld, 113 Ohio St.3d 464, 472, 866 N.E.2d 1051 (2007). Adopting Section
652(E) of the Restatement of the Law 2d, Torts, the Court defined this claim as follows:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion of
his privacy if (a) the false light in which the other was placed would be highly
offensive to a reasonable person, and (b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and the false light in
which the other would be placed.
Welling, 113 Ohio St.3d at Syllabus.
The Court recognized “[t]he requirements imposed by the Restatement make a false-light
claim difficult to prove.” Id. at 1057. First, the statement must be untrue. Id. See also Miller v.
Davis, 653 Fed. Appx. 448, 461 (6th Cir. June 24, 2016) (“Importantly, truth is a defense to an
action for false-light invasion of privacy.”). Second, the information must be “publicized,”
which is different from “published.”5 Id. Third, the misrepresentation made must be serious
enough to be highly offensive to a reasonable person, as follows:
[The rule stated in this Section] applies only when the defendant knows that the
plaintiff, as a reasonable man, would be justified in the eyes of the community in
feeling seriously offended and aggrieved by the publicity.... The plaintiff's privacy
is not invaded when the unimportant false statements are made, even when they
are made deliberately. It is only when there is such a major misrepresentation of
his character, history, activities or beliefs that serious offense may reasonably be
expected to be taken by a reasonable man in his position, that there is a cause of
action for invasion of privacy.
Id. at 1057-1058 (quoting Restatement of the Law 2d, Torts, Section 652E, Comment c).
Further, the plaintiff bears the burden of proving by clear and convincing evidence that the
defendant “had knowledge of or acted in reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be placed,” in cases of both private and public
figures.6 Id. at 1058 (quoting Restatement of the Law 2d, Torts, Section 652E(b)). See also
Patrick v. Cleveland Scene Publishing, 582 F.Supp.2d 939, 954-955 (N.D. Ohio 2008).
Defendants claim they are entitled to judgment in their favor because the documents
The Court explained: “‘Publicity,’ as it is used in this Section, differs from
‘publication,’ as that term is used * * *in connection with liability for defamation. ‘Publication,’
in that sense, is a word of art, which includes any communication by the defendant to a third
person. ‘Publicity,’ on the other hand, means that the matter is made public, by communicating it
to the public at large, or to so many persons that the matter must be regarded as substantially
certain to become one of public knowledge. The difference is not one of the means of
communication, which may be oral, written or by any other means. It is one of a communication
*472 that reaches, or is sure to reach, the public.” Restatement of the Law 2d, Torts, Section
652D, Comment a.” Id.
The Ohio Supreme Court acknowledged a certain degree of overlap between
defamation and the tort of false-light but found “[w]ithout false light, the right to privacy is not
whole, as it is not fully protected by defamation laws.” Welling, 113 Ohio St.3d at 1057. The
Court noted a plaintiff may pursue both claims in the alternative but may only recover for a
single instance of publicity. Id. at 1058.
which form the basis of this claim (i.e., Mishak’s suspension and termination letters) are public
records under Ohio Rev. Code § 149.43. (Doc. No. 16 at 5-7.) Specifically, Defendants argue
“when, as here, the gist of the claim is that defendant Serazin ‘purposely provided Roberson with
the Suspension Letter and Termination Letter,’ which were subsequently published, and when
those records are ‘public records’ as a matter of law, there is no ‘secret’ information disclosed;
there is no privacy interest breached, because, by definition, those documents are ‘public;’
hence, a ‘false light’ claim fails as a matter of law.” (Id. at 6.)
Mishak argues “Defendant’s publication in a public record of erroneous facts aimed at
defaming Plaintiff’s character was in and of itself a violation of his privacy rights and actionable
under this claim.” (Doc. No. 23 at 3.) He further asserts “even if Defendant Serazin’s first
publication of these false statements in a public record did not constitute a false-light tort,
liability for that tort can still attach when disclosing public records not normally viewed by the
public, as Serazin did when disclosing these facts to the media.” (Id. at 7.) In this regard,
Mishak maintains his personnel file “is not normally viewed by the public unless brought to
publicity, as Defendant Serazin did by disclosing it to the media.” (Id.) Finally, Mishak argues
this claim also includes Defendant Serazin’s disclosure to the press that Mishak was under
investigation by the Lorain County Bar Association for an alleged violation of the Ohio Rules of
Professional Conduct while that investigation was confidential. (Id. at 8.)
Upon review, the Court finds Defendants have failed to demonstrate they are entitled to
judgment in their favor with respect to Mishak’s false light invasion of privacy claim. The Ohio
cases cited by Defendants do not involve situations, such as that alleged herein, where a
defendant takes affirmative steps to bring allegedly false and “highly offensive” information
(Doc. No. 13 at ¶¶ 52, 53) forming the basis of a plaintiff’s false light claim to the attention of
the press. See e.g., Lentz v. City of Cleveland, 2006 WL 1489379 at * 4 (N.D. Ohio May 22,
2006) (dismissing invasion of privacy claim where plaintiff “himself made this information
public” by placing the information at issue on the record at two separate public hearings);
Mattessich v. Weathersfield Township, 2015 WL 13134819 at * 3 (Trumbull Cty C.P. June 1,
2015) (dismissing false light invasion of privacy claim where “there was no evidence of falsity
of any statement, and any publicity was the result of Plaintiff’s decision to have a public hearing
or was the result of a mandatory release of records from a public records request.”)
At this early stage in the litigation, the Court cannot say Mishak’s false light invasion of
privacy claims fail as a matter of law. Defendants’ motion for judgment on the pleadings with
respect to Count Two is, therefore, denied.
For all of the foregoing reasons, Defendant’s “Motion for Judgment on the Pleadings”
(Doc. No. 16) is GRANTED IN PART and DENIED IN PART, as follows:
With respect to Count Two (Invasion of Privacy- False Light), Defendants’
motion is denied.
With respect to Count Three (Malicious Prosecution), Defendants’ motion is
granted to the extent this Count is dismissed without prejudice.
With respect to Count Four (Abuse of Process), Defendants’ motion is granted.
With respect to Counts Seven and Eight (Disparate Treatment under the ADA and
OCRA), Defendants’ motion is denied.
With respect to Count Twelve (Loss of Employment), Defendants’ motion is
IT IS SO ORDERED.
Date: February 7, 2018
s/ Jonathan D. Greenberg
Jonathan D. Greenberg
U.S. Magistrate Judge
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