Buddenberg v. Weisdack, et al

Filing 38

Opinion and Order For the reasons stated in the Order, the Court finds that Buddenberg's Claims 3-9 cannot be dismissed. Accordingly, Budzik's Motion to Dismiss and the District Defendants' Motion for Partial Judgment on the Pleadings are denied without prejudice. (Related documents 14 , 20 .) Signed by Judge Dan Aaron Polster on 6/28/2018.(K,K)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Rebecca Buddenberg,
Plaintiff,
v.
Robert K. Weisdack, et al.,
Defendant.

)
)
)
)
)
)
)
)
)

CASE NO. 1:18-cv-00522

JUDGE DAN AARON POLSTER

OPINION AND ORDER

Before the Court are two motions: Defendant James Budzik’s Motion to Dismiss,
Doc #: 14, and the remaining defendants’ (“District Defendants”) joint Motion for Partial
Judgment on the Pleadings, Doc #: 20. For the following reasons, Budzik’s Motion to Dismiss
and the District Defendants’ Motion for Partial Judgment on the Pleadings are DENIED
WITHOUT PREJUDICE.
I.

Background
On March 6, 2018, Plaintiff Rebecca Buddenberg filed the instant civil rights action,

pursuant to both federal and state anti-discrimination laws. Doc #: 1. On March 12, 2018, she
filed an Amended Complaint. With the Court’s permission, Buddenberg filed a Second

Amended Complaint on June 18, 2018. 1 Buddenberg asserts claims against eight defendants: the
Geauga County Health District (the “District”), Geauga County Health Commissioner Robert K.
Weisdack, District employee Alta Wendell, the District’s attorney James Budzik, and Geauga
County Board of Health (the “Board”) members Timothy Goergen, David Gragg, Catherine
Whitright, and Christina Livers (collectively, the “Board Members”). Compl. ¶¶ 4-8. On May 3,
2018, Budzik filed a motion to dismiss all six claims against him. Doc #: 14. On May 11, 2018,
the District Defendants filed a joint motion for partial judgment on the pleadings. Doc #: 20.
Buddenberg filed an Opposition on June 8, 2018. Doc #: 29. Budzik and the District Defendants
filed their Replies on June 22, 2018. Doc #: 32 and 33.
II.

Facts
On a motion to dismiss, the court construes all well-pleaded facts in the light most

favorable to the plaintiff. Johansen v. Presley, 977 F. Supp. 2d 871, 876 (W.D. Tenn. 2013).
Buddenberg was employed by the District from February 2, 2015 to May 27, 2017.
Compl. ¶ 11. She worked as the District’s fiscal coordinator until her March 21, 2017 demotion.
Id. As fiscal coordinator, Buddenberg was responsible for various aspects of the District’s fiscal
management and human resources. Id. ¶¶ 12-13. Her ordinary duties did not include reporting
ethical and policy violations to the Board. Id. ¶ 14. Commissioner Weisdack hired Buddenberg
and was her direct supervisor—except from April 2016-February 2017, when Dan Mix was
Buddenberg’s direct supervisor. Id. ¶ 15. Mix reported direct to Commissioner Weisdack.
Id. ¶ 16. Buddenberg received positive performance evaluations and was well-liked by her coworkers for the first year and a half that she worked at the District. Id. ¶¶ 17-19.

1

All citations throughout this Opinion are to the Second Amended Complaint, however, as the Court intimated in its
June 1, 2018 Order, Doc #: 30, it does not include in this Opinion any new allegations presented for the first time in
the Second Amended Complaint.

2

On October 24, 2016, Buddenberg reported to the Board that Commissioner Weisdack
had engaged in unequal pay practices and ethical misconduct, and that he failed to comply with
the District’s personnel policies. Compl. ¶ 26. She submitted a written report to the Board
detailing her concerns on November 13, 2016. Id. ¶ 32. Within less than forty-eight hours of her
initial report, Commissioner Weisdack instructed Mix to change Buddenberg’s working hours.
Id. ¶ 33. Buddenberg had negotiated flexible hours to accommodate getting a Bachelor’s degree
and taking care of her grandson after work. Id. Commissioner Weisdack provided no
explanation for the change in Buddenberg’s work schedule and did not adjust any other
employee’s schedule, including those who had similarly flexible hours. Id. ¶¶ 34-35. As a
result, Buddenberg was forced to quit school and could no longer provide adequate childcare for
her grandson. Id. ¶ 33. Mix told Buddenberg that Commissioner Weisdack changed her hours
because he was mad at her for going to the Board and he wanted to get rid of her. Id. ¶ 36.
Commissioner Weisdack began threatening Buddenberg and disparaging her to her co-workers.
Id. ¶ 37.
Buddenberg communicated Commissioner Weisdack’s retaliatory behavior to the Board,
both orally and in writing, on several occasions. Id. ¶ 40. The Board took no action to protect
Buddenberg and Commissioner Weisdack’s campaign of retaliation continued. In January 2017,
Mix was forced to resign for supporting Buddenberg. Id. ¶ 62. Buddenberg reported
Commissioner Weisdack’s retaliation toward Mix to Board Member Livers on February 1, 2017.
Id. ¶ 64. On February 15, 2017, Buddenberg reported the retaliation to the EEOC. Id. ¶ 67. The
District received notice of her EEOC filing on February 24, 2017. Id. ¶ 68. Four days later,
Commissioner Weisdack issued Buddenberg a Notice of Proposed Disciplinary Action (the
“Notice”), alleging eight policy violations and setting a hearing for March 3, 2017. Id. ¶ 72.

3

Budzik helped Commissioner Weisdack draft the Notice. Id. ¶ 73. In issuing the Notice, the
District failed to comply with its own progressive disciplinary policy. Id. ¶¶ 77-79. Further, all
of the allegations against Buddenberg were baseless or applied only against Buddenberg. Id.
Budzik conducted the March 3, 2017 hearing, knowing that Commissioner Weisdack had
retaliated against Buddenberg for protected activity and that all policy violation allegations
against her were baseless. Id. ¶ 87.
After the nearly two-hour long hearing, Budzik offered to settle the matter if Buddenberg
would accept a demotion, a pay reduction of nearly $1,000/month, and drop all retaliation
claims, including her EEOC charge. Id. ¶ 94. At a March 7, 2017 Board meeting, Budzik
recommended that the Board take disciplinary action against Buddenberg based on the
allegations that he knew to be false and were rebutted by Buddenberg during the March 3, 2017
hearing. Id. ¶ 98. On March 16, 2017, the District issued an Ohio Revised Code § 124.34 Order
(“Order”), drafted by Commissioner Weisdack and Budzik, finding Buddenberg guilty of nearly
all of the allegations in the Notice. Id. ¶ 99. Buddenberg was suspended for three days, demoted
to a clerical position, and her pay was cut nearly in half. Id. ¶ 100 Commissioner Weisdack
continued to retaliate against Buddenberg until she resigned from the District on May 27, 2017.
Id. ¶ 128.
III.

Legal Standard
The same standard for deciding a Rule 12(b)(6) motion to dismiss applies to a Rule 12(c)

motion for judgment on the pleadings. Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011). A
12(b)(6) motion tests the sufficiency of the complaint. To survive a Rule 12(b)(6) 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

4

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
IV.

Discussion
Budzik moved to dismiss Claims 3-7 and 9 against him. The District Defendants moved

to dismiss Claims 6-8 against them. The Court will address each claim in turn.
A.

Fair Labor Standards Act (“FLSA”) Retaliation (Claim 3)

Budzik first argues that Buddenberg cannot bring an FLSA retaliation claim against him
because he is the District’s outside legal counsel and not her employer. Mot. 5. The antiretaliation provision of the FLSA prohibits “any person” from “discriminat[ing] against any
employee because such employee has filed any complaint or instituted or caused to be instituted
any proceeding under [the FLSA.]” 29 U.S.C. § 215(a)(3). The FLSA defines a “person” as “an
individual, partnership, association, corporation, business trust, legal representative, or any
organized group of persons.” 29 U.S.C. § 203(a) (emphasis added). Thus, by its plain language,
§ 215(a)(3) prohibits legal representatives like Budzik from retaliating against employees.
However, § 215(a)(3) only makes retaliatory conduct unlawful; it does not address the penalties
for a person engaging in retaliation. The penalties for violating § 215(b)(3) are delineated in
§ 216. 29 U.S.C. § 216. Section 216(b) grants an employee a private right of action against any
“employer” who violates § 215(a)(3). 29 U.S.C. § 216(b). So, while “any person” is proscribed
from retaliating under § 215(a)(3), an employee can only bring a civil retaliation claim against an
“employer.” An “employer” is defined by the FLSA as “any person acting directly or indirectly
in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d) (emphasis added).

5

There is no Sixth Circuit authority on the issue of whether outside counsel can be sued by
an employee as an “employer” for retaliation under the FLSA. Accordingly, the Court has
determined to deny the motion to dismiss at this time until there is a factual record developed on
precisely what, if any, role Budzik played in the decision to discipline Buddenberg. Budzik may
renew his legal challenge to this claim after discovery has concluded by filing a motion for
summary judgment.
B.

State Law Equal Pay Discrimination (Claim 4)

Budzik claims that Buddenberg cannot state a claim under Ohio’s discrimination statute,
ORC § 4111.17, because he is not her employer. Mot. 18. Ohio law prohibits “employers” from
discriminating in the payment of wages. ORC § 4111.17(A). “Employer” is defined in Article
II, Section 34a of the Ohio Constitution as having the same meaning as under the FLSA. See
ORC § 4111.02 and Ohio Const. Art. II, § 34a. Thus, whether Budzik is an employer under
ORC § 4111.17 is dependent upon whether he is an employer under the FLSA, which the Court
has declined to determine at this time.
C.

First Amendment Retaliation (Claim 5)

Next, Budzik argues that Buddenberg cannot state a First Amendment retaliation claim
against him because he is not a state actor, Buddenberg’s speech was not protected, or, in the
alternative, Budzik is entitled to qualified immunity.
1.

State Actor

To state a 42 U.S.C. § 1983 claim, a plaintiff must allege that a person acting under color
of state law deprived her of a federal right. Sperle v. Michigan Dept. of Corrections, 297 F.3d
483, 490 (6th Cir. 2002). “In order for a private actor, such as private attorneys, to become ‘state
actors’ for purposes of § 1983, the private actor must be ‘jointly engaged with state officials in

6

[a] prohibited action’ and be ‘a willful participant in joint activity with the State or its agents.’”
Wilder v. Swann, No. 3:11-cv-93, 2011 WL 4860041 at *8 (E.D. Tenn. Oct. 13, 2011) (quoting
Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). 2 “[A] private party can fairly be said to be
a state actor if (1) the deprivation complained of was ‘caused by the exercise of some right or
privilege created by the State’ and (2) the offending party ‘acted together with or has obtained
significant aid from state officials or because his conduct is otherwise chargeable to the State.’”
Tahfs, 316 F.3d at 590-91 (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)). The
Sixth Circuit recognizes three tests for determining whether private conduct is fairly attributable
to the state: the public function test, the state compulsion test, and the nexus test. Ellison v.
Garbarino, 48 F.3d 192, 195 (6th Cir. 1995). The nexus test—the test most applicable to the
facts of this case—requires a “sufficiently close relationship . . . between the state and the private
actor so that the action taken may be attributable to the state.” Id. “The inquiry is fact-specific,
and the presence of state action is determined on a case-by-case basis.” Chapman v. Higbee Co.,
319 F.3d 825, 834 (6th Cir. 2003) (citation omitted).
Buddenberg alleges that Commissioner Weisdack and Budzik worked together to draft
the Notice that advised her of the disciplinary investigation against her. Compl. ¶ 72. Budzik
then conducted the March 3, 2017 disciplinary hearing, knowing that Commissioner Weisdack
had retaliated against Buddenberg for protected activity and that all policy violation allegations
against her were baseless. Id. ¶ 87. Budzik then sought to coerce Buddenberg into dropping her
retaliation claims against the District. Id. ¶ 94. At a March 7, 2017 Board meeting, Budzik
recommended that the Board take disciplinary action against Buddenberg based on the

2

Budzik relies entirely on Polk County v. Dodson, 454 U.S. 312, 318 (1981) to argue that he is not a state actor.
However, Polk and its progeny hold that a state public defender is not a state actor by virtue of being paid by the
state. State public defenders represent indigent criminal defendants, not the state. These cases do not illuminate
under what circumstances a lawyer, paid to represent the state, becomes a state actor.

7

allegations that he knew to be false and were rebutted by Buddenberg during the March 3, 2017
hearing. Id. ¶ 98. He and Commissioner Weisdack then drafted the Ohio Revised Code §
124.34 Order (“Order”), finding Buddenberg guilty of nearly all of the allegations in the Notice.
Id. ¶ 99. These facts allege a sufficient nexus between Budzik and the District. The complaint
alleges that Budzik and Commissioner Weisdack worked together to retaliate against
Buddenberg to the extent that Budzik’s actions may be attributable to the District. The Court
finds that Buddenberg has pleaded sufficient facts to allege that Budzik was a state actor.
2.

Protected Speech

Budzik next alleges that Buddenberg’s speech was not protected under the First
Amendment because it was not made pursuant to her job duties. Mot. 13. Whether a public
employee’s speech is entitled to protection under the First Amendment is a two-step inquiry.
Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (citing Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). 3 First, the Court must determine whether the employee spoke as a citizen on a matter of
public concern. Generally, “when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” Garcetti, 547
U.S. at 421. The critical question “is whether the speech at issue is itself ordinarily within the
scope of an employee’s duties, not whether it merely concerns those duties.” Lane, 134 S. Ct. at
2379. Further, “[s]peech involves matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to the community, or when it is a
subject of legitimate news interest; that is, a subject of general interest and of value and concern
to the public.” Lane, 134 S.Ct. at 2380.

3

Budzik does not address the second step of the inquiry: whether the District had an adequate justification for
treating Buddenberg differently from any other member of the general public. Lane, 134 S. Ct. at 2378.

8

Buddenberg was responsible for various aspects of the District’s fiscal management and
human resources. Compl. ¶¶ 12-13. Her ordinary duties did not include reporting ethical and
policy violations to the Board. Id. ¶ 14. Budzik argues that Buddenberg’s statements were made
pursuant to her job duties because she was responsible for payroll and human resource functions.
Mot. 15. But Budzik does not allege that Buddenberg determined employee salaries or was
responsible for reporting policy violations to the Board. To the contrary, reporting
Commissioner Weisdack’s ethical and policy violations to the Board does not appear to be a
typical function of a human resources manager. Additionally, Buddenberg’s speech addresses
issues that are undoubtedly of public concern: unequal pay between men and women at the
District and Commissioner Weisdack’s unethical conduct concerning public funds. The Court
finds that Buddenberg adequately alleges that she spoke as a citizen on a matter of public
concern.
3.

Qualified Immunity

Lastly, Budzik claims that even if the Court finds that he is a state actor, he is entitled to
qualified immunity. Qualified immunity shields government officials from personal 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.” Smoak v. Hall, 460 F.3d
768, 777 (6th Cir.2006). Although qualified immunity should be resolved as early as possible,
“it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis
of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015). Whether an
officer is entitled to qualified immunity is usually dependent on the facts of the case and cannot
be determined at the pleadings stage. Oshop v. Tennessee Dep't of Children's Servs., No. 3:09CV-0063, 2009 WL 1651479, at *7 (M.D. Tenn. June 10, 2009). Accordingly, the Court finds

9

that the determination of whether Budzik is entitled to qualified immunity is premature and
cannot be determined at this stage in the litigation. Budzik may raise this defense if he develops
a factual record to support it.
D.

Civil Liability for Criminal Acts (Claims 6-8)

In Claims 6-8, Buddenberg makes claims for civil liability against Budzik and the District
Defendants, pursuant to Ohio Revised Code § 2307.60, for alleged violations of three Ohio
criminal statutes: ORC § 2921.05 (Retaliation); ORC § 2921.03 (Intimidation); and ORC §
2921.45 (Interfering with Civil Rights). Budzik and the District Defendants both move to
dismiss these claims, 4 arguing that Buddenberg may not bring claims under ORC § 2307.60
unless the defendants have actually been convicted of the criminal offenses underlying those
claims. They assert that because neither Budzik nor the District Defendants were convicted of
violations of ORC §§ 2921.05, 2921.03, and 2921.45, Buddenberg cannot state a claim for relief
pursuant to ORC § 2307.60.
ORC § 2307.60 provides that “[a]nyone injured in person or property by a criminal act
has, and may recover full damages in, a civil action . . ..” ORC § 2307.60(A)(1) (emphasis
added). Recently, in Jacobson v. Kaforey, the Ohio Supreme Court held that ORC § 2307.60
independently authorizes a civil action for damages caused by criminal acts. 75 N.E.3d 203, 204
(Ohio 2016). 5 The Ohio Supreme Court determined that the language of ORC § 2307.60 is plain
and unambiguous and found that ORC § 2307.60(A)(1) “specifically authorize[s] a civil action
for damages based on the violation of any criminal statute.” Id. at 206 (emphasis added).
Jacobson brought claims pursuant to ORC § 2307.60 for violations of three criminal statutes:

4

Budzik is only named in Claims 6 and 7.
Prior to Jacobson, ORC § 2307.60 was thought to “merely codif[y] Ohio common law that a civil action does not
merge into a criminal prosecution.” Id. at 205.

5

10

ORC § 2905.03 (Unlawful Restraint); ORC § 2905.01 (Kidnapping); and ORC § 2905.05 (Child
Enticement). None of the Jacobson defendants had been convicted of the alleged criminal
violations. 6 Although Jacobson is informative, the Ohio Supreme Court specifically stated in its
opinion that what a plaintiff must do to prove a claim under ORC § 2307.60 was beyond the
scope of the question certified for the Court’s review. There is authority from this district that
the state statute requires a plaintiff to allege and prove that the defendant was criminally
convicted. See Jane v. Patterson, No. 1:16-CV-2195, 2017 WL 1345242 (N.D. Ohio Apr. 12,
2017); A.A. v. Otsego Local Sch. Bd. of Educ., No. 3:15-CV-1747, 2016 WL 7387261 (N.D.
Ohio Dec. 21, 2016); and Ortiz v. Kazimer, No. 1:11 CV 01521, 2015 WL 1400539 (N.D. Ohio
Mar. 26, 2015). 7
Further, neither party cited any caselaw discussing what burden of proof applies to an
ORC § 2307.60 claim. A criminal conviction requires proof beyond a reasonable doubt; civil
liability can be established by a preponderance of the evidence. If the legislature created civil
liability for those injured by a “criminal act,” did it mean to let a plaintiff do an end-run around
the higher burden of proof required to establish a crime? Suppose a defendant is actually
prosecuted and acquitted? May the victim go to civil court and seek to prove the same “criminal
act” by a preponderance of the evidence? Interestingly, in 2007, the Ohio General Assembly
amended ORC § 2307.60 to create a presumption of civil liability when the defendant had been
convicted of a criminal violation. Am. Sub. S.B. 117. Had the General Assembly wanted to
make a criminal conviction a condition precedent to establishing an ORC § 2307.60 claim, they

6

Jacobson v. Kaforey, CV-2012-09-5246, is still pending in the Summit County Court of Common Pleas. On June
4, 2018, the Summit County judge denied Defendants’ motion for judgment on the pleadings which again
unsuccessfully sought dismissal of the ORC § 2307.60 claims.
7
None of this cases cite Jacobson.

11

presumably could have done so. However, the creation of this presumption does not
conclusively establish that a conviction is not required for civil liability.
Accordingly, the Court will deny the motion to dismiss at this time. Defendants may
renew their challenge in the form of a motion for summary judgment after discovery and further
research.
E.

State Law Privilege (Claims 4, 6, 7, and 9)

Budzik maintains that Buddenberg’s state law claims should be dismissed because he is
entitled to an Ohio law qualified privilege for attorneys acting on behalf of their clients. Mot. 16.
It is by now well-established in Ohio that an attorney may not be held liable by
third parties as a result of having performed services on behalf of a client, in good
faith, unless the third party is in privity with the client for whom the legal services
were performed, or unless the attorney acts with malice.
Simon v. Zipperstein, 512 N.E.2d 636, 638 (1987). Buddenberg argues that this qualified
privilege is limited to the context of legal malpractice claims and therefore cannot apply to
Budzik. Opp. 20. Buddenberg cites two cases to support her contention: Nix and Reich. 8
Opp. 21-22. Neither case is applicable to this one. In Nix, the Sixth Circuit considered whether
the absolute privilege that protects attorneys who republish defamatory statements when
defending their clients applied. Nix, 160 F.3d at 352. This privilege is separate and distinct from
the privilege Buzik asserts. Additionally, in Reich, the Court considered whether an employer’s
agent’s actions were privileged. Reich, 897 F. Supp. at 1016. Agents are not subject to the same
privileges as attorneys so the Court’s reasoning in Reich does not apply here. Thus, the Court
finds that Budzik can assert Ohio’s qualified privilege for lawyers against Ohio statutory claims.

8

Nix v. O’Malley, 160 F.3d 343 (6th Cir. 1998); Reich v. State Credit Inc., 897 F. Supp. 1014, 1016 (N.D. Ohio
1995).

12

However, Ohio’s privilege does not apply when an attorney acts with malice. Simon v.
Zipperstein, 512 N.E.2d 636, 638 (Ohio 1987). The malice exception to this qualified privilege
applies in circumstances of “fraud, bad faith, collusion or other malicious conduct.” Shoemaker
v. Gindlesberger, 887 N.E.2d 1167, 1170 (Ohio 2008). Buddenberg alleges that Budzik played a
leading role in her disciplinary investigation, hearing, and subsequent demotion, all while
knowing that his actions were retaliatory. Compl. ¶ 87. She also alleges that Budzik attempted
to coerce and intimidate her into dropping her EEOC charges against the Board. Id. ¶ 91. The
Court finds that these allegations are sufficient to plead that Budzik acted with malice and is
therefore not entitled to Ohio’s qualified privilege. Should Budzik feel that the factual record
does not support the contention that he acted with malice, he may reassert that he is entitled to
this privilege.
V.

Conclusion
For the foregoing reasons, the Court finds that Buddenberg’s Claims 3-9 cannot be

dismissed. Accordingly, Budzik’s Motion to Dismiss and the District Defendants’ Motion for
Partial Judgment on the Pleadings are DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.
/s/Dan Aaron Polster June 28, 2018
DAN AARON POLSTER
UNITED STATES DISTRICT COURT

13