Ingram v. Regano et al

Filing 28

Order. The Court grants Defendants' 9 Motion for Judgment on the Pleadings on Ingra's Due Process claim, individual capacity Title VII claims, Breach of Fiduciary Duty claim and official capacity Civil Conspiracy claim. The Court denies judgment for Defendants on all other claims. See Order for details. Judge Christopher A. Boyko on 3/31/21.(S,HR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MERIBETHE R. INGRAM,
Plaintiff,

vs.
JOSEPH V. REGANO
Defendant.

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CASE NO.1:19CV2926
SENIOR JUDGE
CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, SR. J:
This matter is before the Court on Defendants’ Joseph V. Regano and Fred E. Bolden, II
Joint Motion for Judgment on the Pleadings. (ECF # 9).

For the following reasons, the Court

grants, in part, and denies, in part, Defendants’ Motion.
Plaintiff Meribethe R. Ingram, (“Ingram”) brings this suit against Defendants Joseph V.
Regano (“Regano”)1 and Fred E. Bolden, II (“Bolden”) in their official and personal capacities
for violations of her Procedural Due Process and Equal Protection rights guaranteed by the
United States Constitution. Ingram alleges Defendants deprived her of her property interest in
her substitute teaching and other specialist positions at Lewis Elementary School in Solon, Ohio.
She further alleges Sexual Discrimination claims in violation of Title VII of the United States

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In a subsequent filing, the parties informed the Court Regano is deceased and there is a
pending Amended Motion to Substitute Party.

Code and Ohio law and Unlawful Retaliation in violation of Ohio law. In addition, Ingram
alleges Breach of Fiduciary Duty and Civil Conspiracy claims in violation of Ohio law.
FACTUAL BACKGROUND
According to her Complaint, Ingram alleges she worked and volunteered in various
capacities at Lewis Elementary, the school her children attended, as a Substitute Teacher,
Reading Recovery and Back Up Media Specialist, Testing Assistant and Parent Workroom
Coordinator. Beginning in October 2017, Ingram alleges she was harassed by a teacher at Lewis
and reported it to the Lewis Administrators but nothing was done about it. In December 2017,
Regano, a District Superintendent and Compliance Officer, was made aware of Ingram’s
harassment complaint. Instead of investigating her complaint, Ingram was informed she was no
longer welcome on the Lewis Elementary premises. According to Ingram, this action was
retaliatory and violated the District’s anti-harassment policy.
Ingram subsequently pressed the issue and an investigation was finally commenced but
the retaliation against Ingram continued. In January of 2018, Regano and Bolden met with both
Ingram and her alleged harasser in the course of their investigation. When asked that she be put
back on the substitute teacher list, Ingram was informed she could not be returned to the list
because she was under investigation. It was the first time Ingram was told there was an ongoing
investigation of her. Ingram was never provided any written complaint against her. Thus, she
contends she was denied certain protections offered by the District’s anti-harassment policy,
including: a written complaint outlining the allegations against her; an opportunity to respond to
the allegations and an impartial hearing before the District’s Authorities took away her substitute
teaching opportunities.

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In February 2018, Ingram filed a written complaint for unlawful retaliation with both
Bolden and Regano as respondents. The District, however, allowed Bolden and Regano to
oversee the investigation even though both were the subject of the investigation. In March 2018,
after learning he was the subject of Ingram’s retaliation complaint, Regano issued a
determination that Ingram harassed her alleged harasser and stripped her of her substitute
teaching employment and assistant and volunteer opportunities at Lewis Elementary. Ingram’s
retaliation complaint was denied in April 2018.
Ingram appealed the finding that she had harassed a teacher at Lewis and appealed the
denial of her retaliation complaint. Her appeals were heard by the Solon City Schools District
Board of Education. In May 2018, the Board denied both Ingram’s appeals. In September of
2018, Ingram received her Right to Sue from the EEOC and subsequently filed this action.
Defendants’ Motion
Defendants move for judgment on all Ingram’s claims, contending she cannot show she
has a constitutionally protected property interest in her at-will employment with Solon schools
that would entitle her to Due Process under the United States Constitution or the District’s
policies or procedures. Neither can she show a violation of her Equal Protection rights as she is
a class-of-one and has not alleged discriminatory animus based on race or gender. Moreover, the
Defendant Administrators are entitled to qualified immunity. She also fails to allege an adverse
employment action as she was only barred from volunteering or substitute teaching at one
school. She was not barred District-wide. She also fails to plead she was treated differently than
a similarly-situated employee as her comparator is a school teacher, not a volunteer or substitute
teacher.

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Finally, her Civil Conspiracy claim fails because individual employees of the same
employer are not considered separate individuals for a conspiracy claim nor has Ingram pled an
unlawful act.
Ingram’s Opposition
According to Ingram, Defendants’ Motion must fail as she has adequately plead a Due
Process violation. She alleges she had multiple implied agreements for a number of positions,
including Testing Assistant and Backup Media Specialist; and therefore, she can show a property
interest protected by Due Process. Defendants fail to address Plaintiff’s paid positions in their
Motion despite the Complaint specifically describing her property interest. Ingram claims she
had a protected property interest in working at Lewis Elementary School as a result of an implied
agreement with Michael Acomb, the Principal at Lewis.
In addition, Ingram alleges the Solon School District’s anti-harassment policy 3362 is not
limited to full-time teachers but governs all employees and volunteers, including substitute
teachers. Also, classroom volunteers must be members of the PTA, which requires a fee to join.
Thus, Ingram paid for the privilege of volunteering as a Parent Workroom Coordinator and as
such, has a property interest in the position. Moreover, Defendants’ Motion never raises the
issue of Ingram’s work as a Reading Recovery Specialist.
Due to the allegations against Ingram that she was a harasser and because of the potential
damage to her reputation resulting from such accusations, Ingram was entitled to Due Process
under the law as she has a liberty interest in her reputation.
Ingram further alleges she made a straightforward allegation that Defendants treated male
employees more favorably than female employees and that such allegation sufficiently alleges an

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Equal Protection violation.
Regarding her Sex Discrimination and Retaliation claims, Ingram asserts she has alleged
an adverse employment action, including loss of compensation; and has alleged temporal
proximity in engaging in a protected activity-i.e. complaining of harassment- and losing her
positions the next day as Testing Assistant, Backup Media Specialist, Reading Recovery
Specialist and Parent Work Room Coordinator at Lewis. Both her positions as Backup Media
Specialist and Testing Assistant were paid positions, thus showing an adverse employment
action. Furthermore, she was not offered these positions at other Solon Schools. She further
alleges she has shown that her harasser was treated more favorably as he received due process
and she did not. Although he was a full-time teacher and she was a substitute, she has alleged
they were similarly situated in all relevant respects, satisfying her obligation at the pleading
stage to show discrimination and retaliation.
By assuming the role of a third-party neutrals adjudicating the competing harassment
claims, Ingram alleges she has shown that Defendants owed her a fiduciary duty and breached
that duty by denying her due process.
Ingram alleges she has adequately pled Civil Conspiracy as the intracorporate conspiracy
doctrine does not apply when the actors acted outside the scope of their employment. According
to Ingram, by acting in their own personal interest, Defendants acted outside the scope of their
employment and therefore, cannot avail themselves of this defense.
Lastly, Ingram says she has adequately pled official capacity Title VII claims which have
gone uncontested by Defendants and has plead Sex Discrimination under Ohio law against
Defendants in their individual capacities as they aided or abetted discrimination and/or directly

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or indirectly attempted to discriminate against her. She alleges Defendants are not entitled to
statutory immunity under Ohio law as they acted in bad faith and outside the scope of their
employment.
Defendants’ response
Defendants reply that, regardless of her various position titles, Ingram has no property
interest in any of them and they are entitled to judgment as a matter of law on her Due Process
claim. Defendants argue that where a formal advancement scheme exists like that under Ohio
statute, implied contracts and unilateral understandings are insufficient to confer a property
interest in a substitute teaching or volunteer position. Advancement from substitute to full-time
teacher is governed by Ohio statute. Furthermore, in Ohio substitute teachers are at-will
employees by law. Therefore, Ingram cannot show a property interest in her substitute teaching
position or volunteer activities.
Defendants also contend that Ingram cannot assert for the first time in her Opposition
Brief a claim of a liberty interest that entitles her to Due Process. Ingram has not pled such a
claim in her Complaint, therefore, she is prohibited from doing so in opposing Defendants’
Motion. Nor has she alleged in her Complaint that the purported injury to her reputation
prevented her from working at other Solon Schools. To the contrary, Defendants expressly
permitted her to work at other Solon schools.
Judgment for Defendants is further required because Ingram fails to assert the
purportedly flawed investigation was tainted by unlawful gender discrimination. Instead,
Defendants allege she merely asserts disparate treatment, which is insufficient to support her
Equal Protection claim without any allegation of discriminatory gender-based animus.

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Moreover, Ingram fails to plead a similarly situated comparator was treated differently.
Her comparator is a full-time teacher who, under Ohio law and per his status as a contracted for
employee, cannot be similarly situated to Ingram who, as a substitute teacher and volunteer, is
not entitled to the same due process. Also, it is fatal to her discrimination claim that her
comparator was not alleged to have engaged in the same misconduct.
Ingram’s claims for Sex Discrimination and Retaliation are further flawed as she has not
sufficiently pled an adverse employment action nor has she plead that she engaged in a protected
activity.
Ingram’s Breach of Fiduciary Duty claim suffers from a fatal flaw in that she cannot
show the Administrators owed her any fiduciary duty to conduct an investigation for her benefit.
And her claims that the Administrators acted outside the scope of their employment also suffers
from the fatal lack of facts to support this conclusory allegation. Therefore, they are entitled to
statutory immunity on Ingram’s state law claims
LAW AND ANALYSIS
After the pleadings are closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). A motion for judgment on the
pleadings is governed by the same legal standard as a Fed. R. Civ. P. 12(b)(6) motion to dismiss
for failure to state a claim upon which relief may be granted. Almendares v. Palmer, 284
F.Supp.2d 799, 802 (N.D. Ohio 2003). Therefore, as with a motion to dismiss, the Court must
test the sufficiency of the complaint and determine whether “accepting the allegations in the
complaint as true and construing them liberally in favor of the plaintiff, the complaint fails to
allege ‘enough facts to state a claim for relief that is plausible on its face.’ ” Ashmus v. Bay Vill.

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Sch. Dist. Bd. of Educ., 2007 WL 2446740, 2007 U.S. Dist. LEXIS 62208 (N.D. Ohio 2007),
quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929
(2007). Claims alleged in the complaint must be “plausible,” not merely “conceivable.” Id.
Dismissal is warranted if the complaint lacks an allegation as to a necessary element of the claim
raised. Craighead v. E.F. Hutton & Co., 899 F.2d 485 (6th Cir. 1990). A Rule 12(c) motion “is
granted when no material issue of fact exists and the party making the motion is entitled to
judgment as a matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233,
1235 (6th Cir. 1991) (emphasis added).
A written instrument attached to a pleading is a part of the pleading for all purposes. Fed.
R. Civ. P. 10(c). “In addition, when a document is referred to in the pleadings and is integral to
the claims, it may be considered without converting a motion to dismiss into one for summary
judgment.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335–36 (6th
Cir. 2007).
“To survive a motion to dismiss a claim under 42 U.S.C. § 1983, the plaintiff must allege
two elements: (1) the defendant acted under color of state law; and (2) the defendant's conduct
deprived the plaintiff of rights secured under federal law.” Fritz v. Charter Twp. of Comstock,
592 F.3d 718, 722 (6th Cir. 2010). Plaintiff alleges two Constitutional Violations; a procedural
Due Process violation and violation of her Equal Protection rights, both under the Fourteenth
Amendment. The Court will consider these below.
Due Process
To be successful in a procedural due process claim, Plaintiff must show that she: 1) “had
a life, liberty, or property interest protected by the Due Process Clause, 2) was deprived of the

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protected interest and (3) the state ‘did not afford her adequate procedural rights.” Daily Servs.,
LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014) (citing Women's Med. Prof'l Corp. v. Baird,
438 F.3d 595, 611 (6th Cir. 2006)). The Supreme Court has established that “[p]rocedural due
process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “Procedural due process
generally requires that the [government] provide a person with notice and an opportunity to be
heard before depriving that person of a property or liberty interest.” Warren v. City of Athens,
Ohio, 411 F.3d 697, 708 (6th Cir. 2005).
Ingram’s Complaint alleges solely a property interest in her work and volunteer positions
and fails to mention any liberty interest. See Complaint ¶ 75. “Because Mrs. Ingram had a
property interest in her work and assignments at Lewis Elementary, she was entitled to
procedural due process before Defendants deprived her of that property interest.” See also
¶ 76. “Pursuant to District Policy 3362, Mrs. Ingram had a property interest in: receiving (a) a
list of the allegations against her; and (b) an opportunity to respond to those allegations.” And
¶77. “Defendants Regano and Bolden failed to provide Mrs. Ingram with adequate
procedural protection before depriving Mrs. Ingram of her property interests in (a) continued
employment as a substitute at Lewis Elementary; (b) continued employment assisting with test
administration and serving as the backup media specialist at Lewis Elementary; (c) continued
service as a Reading Recovery Specialist at Lewis Elementary; (d) continued service as
the Parent Workroom Coordinator at Lewis Elementary; and (e) being given a chance to
review and respond to any allegations raised against her.”

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In her Brief in Opposition, Ingram, for the first time, alleges a liberty interest in her
reputation, but this interest was never pled in her Complaint. “If plaintiffs believe that they need
to supplement their complaint with additional facts to withstand a motion for judgment on the
pleadings (or a motion to dismiss), they have a readily available tool: a motion to amend the
complaint under Rule 15. Plaintiffs cannot, by contrast, amend their complaint in an opposition
brief or ask the court to consider new allegations (or evidence) not contained in the complaint.”
Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 483 (6th Cir. 2020). Therefore, the Court
finds Ingram failed to assert in her Complaint any liberty interest and the Court will proceed to
analyze her Due Process claim as asserting a property interest only.
Property interests “are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of
Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). For a public
employee to be successful in his due process violation claim, he must “establish that he had a
protectable property interest in his position.” Kuhn v. Washtenaw Cnty., 709 F.3d 612, 620 (6th
Cir. 2013) (citing Miller v. Admin. Office of the Courts, 448 F.3d 887, 895 (6th Cir. 2013).
Further, a public employee must prove a “legitimate expectation of continued employment” by
reference to state law in order to establish a constitutionally protected property interest in his or
her employment position. Waters v. Drake, 105 F.Supp.3d 780, 790 (S.D. Ohio 2015), quoting
Roth, 408 U.S. at 577; see also Bishop v. Wood, 426 U.S. 341, 344–45, 96 S.Ct. 2074, 48
L.Ed.2d 684 (1976). The Sixth Circuit has held that an at-will employee does not have a
property interest in his employment that is protected by the Due Process Clause. Bailey v. Floyd

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Cnty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 141 (6th Cir. 1991); see also
Chilingirian v. Boris, 882 F.2d 200, 204 (6th Cir. 1989); Vogel v. City of Medina, No.
1:17CV272, 2018 WL 637465, at *2 (N.D. Ohio Jan. 31, 2018).
Although property rights are principally created by state law, “whether a substantive
interest created by the state rises to the level of a constitutionally protected property interest is a
question of federal constitutional law.” Whaley v. County of Tuscola, 58 F.3d 1111, 1114 (6th
Cir.1995). “Property interests protected by the due process clause must be more than abstract
desires or attractions to a benefit. The due process clause only protects those interests to which
one has a legitimate claim of entitlement.” Brotherton v. Cleveland, 923 F.2d 477, 480 (6th
Cir.1991); Waeschle v. Dragovic, 576 F.3d 539, 544–45 (6th Cir. 2009)
Under Ohio law, O.R.C. § 3319.10, substitute teachers have no property interest in their
continued employment:
Teachers may be employed as substitute teachers for terms not to exceed one year
for assignment as services are needed to take the place of regular teachers absent
on account of illness or on leaves of absence or to fill temporarily positions
created by emergencies; such assignment to be subject to termination when such
services are no longer needed.
***
Teachers employed as substitutes on a casual or day-to-day basis shall not be
entitled to the notice of non-reemployment prescribed in section 3319.11 of the
Revised Code....

See also Lautermilch v. Findlay City Sch., 314 F.3d 271, 274–75 (6th Cir. 2003).
However, a contract for employment may confer a protectable property interest. Id.
“[C]onstitutionally protected property interests can be created by either explicit or implied
contractual terms ...“[e]xplicit contractual provisions may be supplemented by other agreements
implied from ‘the promisor's words and conduct in light of the surrounding circumstances.’ ”
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Ramsey v. Bd. of Educ. of Whitley Cty., Ky., 844 F.2d 1268, 1271–72 (6th Cir. 1988) quoting
Perry v. Sinderman, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
Here, because Ingram alleges she was a substitute teacher and Ohio law expressly holds
substitute teachers do not possess a property interest in their positions, Ingram cannot show a
property interest in her substitute teaching position. In her Opposition Brief, she asserts the
argument that based on understandings or requirements placed on her substitute teaching,
including that she would only substitute teach at Lewis Elementary, a contract was created and
along with it, a protected property interest in her position. However, this position by contract is
also never alleged in her Complaint nor has she alleged any facts in her Complaint sufficient to
raise a plausible property interest by contract claim.
Therefore, Defendants are entitled to judgment on her Due Process claim as Ingram has
not alleged a property interest in her employment and her implied contract claim cannot be
raised for the first time in an Opposition Brief. See Springs v. U.S. Dep't of Treasury, 567 F.
App'x 438, 448 (6th Cir. 2014) (“ Because Springs does not allege any contractual right to
continued employment, she was presumably an at-will employee who lacked a protected
property interest in her continued employment at Ally.”).
Insofar as Ingram alleges a property interest in the school’s anti-harassment process, a
“person cannot have a property interest in a procedure itself.” Taylor Acquisitions, L.L.C. v. City
of Taylor, 313 F. App'x 826, 832 (6th Cir. 2009) citing Richardson v. Twp. of Brady, 218 F.3d
508, 518 (6th Cir.2000). Therefore, Ingram cannot allege a property interest in the process itself.
Courts, including those in Ohio, have found that volunteers do not possess a property
interest in their volunteer positions. See Neal v. Treglia, 2019-Ohio-3609, ¶ 21, 144 N.E.3d

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1045, 1054. (“Generally speaking, volunteers do not have property interests in their positions,
and thus do not have a constitutional right to due process.”) citing Versarge v. Township of
Clinton, 984 F.2d 1359, 1370 (3rd Cir.1993); Hyland v. Wonder, 117 F.3d 405, 412 (9th
Cir.1997); and Hale v. Bexar County, Tex., 2009 WL 2222833 (5th Cir. July 27, 2009). See also,
Baker v. McDaniel, No. CIV.A. 07-379-KSF, 2009 WL 2710099, at *4 (E.D. Ky. Aug. 24,
2009). Consequently, Ingram has failed to allege a plausible claim of a protected property
interest in her volunteer positions which could support any claim for Due Process violation.
For the foregoing reasons, the Court grants Defendants’ Motion on Ingram’s Due Process
claim.
Equal Protection and Title VII Discrimination
According to her Complaint, Ingram alleges “Defendants deprived Mrs. Ingram of her
right to procedural due process and equal protection as a result of Defendants’ practice of
ignoring the mandatory requirements of the District’s Anti-Harassment Policy; Defendants’
policy of providing procedural due process to male employees but not female employees;
Defendants’ policy of not investigating allegations of harassment raised by female employees
against male employees; and Defendants’ policy of advising female complainants to “be
professionals” and “assuage the egos” of their male harassers.” (Complaint ¶ 94).
The Equal Protection Clause provides that “[n]o state shall make or enforce any law
which shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. To assert a valid Equal Protection claim, a plaintiff “must adequately
plead that the government treated the plaintiff ‘disparately as compared to similarly situated
persons and that such disparate treatment either burdens a fundamental right, targets a suspect

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class, or has no rational basis.’ ” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,
379 (6th Cir. 2011). “Such a claim is potentially actionable in the public-employment context.”
See Deleon v. Kalamazoo Cnty. Rd. Comm'n, 739 F.3d 914, 917-18 (6th Cir. 2014) (concluding
that the elements necessary to establish an equal protection claim under 42 U.S.C. § 1983, and to
establish a violation of Title VII, are “the same”).
However, as an initial matter, Ingram does not allege a class-of-one Equal Protection
claim since she alleges Defendants treated female employees differently than male employees,
affording them less protections under the District’s anti-harassment policy than males. See
Complaint ¶93:
Defendants deprived Mrs. Ingram of her right to procedural due process
and equal protection as a result of Defendants’ practice of ignoring the
mandatory requirements of the District’s Anti-Harassment Policy;
Defendants’ policy of providing procedural due process to male employees
but not female employees; Defendants’ policy of not investigating allegations of
harassment raised by female employees against male employees; and Defendants’
policy of advising female complainants to “be professionals” and “assuage the
egos” of their male harassers.
This allegation is sufficient at this stage of the proceedings to survive a motion for
judgment on the pleadings as it plausibly alleges a disparate treatment Equal Protection claim.
Defendants allege they are entitled to Qualified Immunity on Ingram’s § 1983 claims
because she has not alleged a violation of a constitutional right. While the Court agrees Plaintiff
has not alleged a due process property right in her employment, she has alleged a suspect class
Equal Protection claim based on her sex. However, Defendants contend that Ingram’s failure to
adequately plead an adverse employment action or a similarly-situated comparator defeats both
her Equal Protection and Title VII claims. Therefore, the Court will proceed with its anlaysis
under Title VII.
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Sex Discrimination
In her Sex Discrimination claim, Ingram alleges: By providing procedural due process
to her male harasser and denying such procedural due process to Mrs. Ingram, Defendants
Regano and Bolden discriminated against Mrs. Ingram based on her sex. Plaintiff was targeted
for removal from her positions at Lewis Elementary based on her sex. Plaintiff was improperly
investigated and ultimately improperly disciplined. (Complaint ¶ 103-105).
Title VII provides that an employer may not “discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Where a
plaintiff relies on circumstantial evidence to prove her claim, the Sixth Circuit applies the
burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973). “Under this framework, the plaintiff must first make out a prima
facie case of discrimination, which requires the plaintiff to show that: (1) she is a member of a
protected class; (2) she was subjected to an adverse employment action; (3) she was qualified for
the position; and (4) similarly situated non-protected employees were treated more favorably.”
Stewart v. Esper, 815 F. App'x 8, 16 (6th Cir. 2020) citing Jackson v. VHS Detroit Receiving
Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016).
An adverse employment action is a “materially adverse change in the terms or conditions
of ... employment because of [the] employer's conduct.” Mitchell v. Vanderbilt Univ., 389 F.3d
177, 182 (6th Cir. 2004) (quoting Kocsis v. Multi–Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.
1996)). An adverse employment action “constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different

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responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Other material adverse
actions such as “a less distinguished title, diminished options for advancement, or other unique
indices” can constitute adverse employment actions. Freeman v. Potter, 200 F. App'x 439, 442
(6th Cir. 2006). “But not every act affecting an individual's employment constitutes a materially
adverse change.” Stewart, 815 F.App’x. at 17 citing McMillian v. Potter, 130 F. App'x 793, 796
(6th Cir. 2005). “Reassignments without changes in salary, benefits, title, or work hours usually
do not constitute adverse employment actions.” Policastro v. Nw. Airlines, Inc., 297 F.3d 535,
539 (6th Cir. 2002). “Whether something constitutes an adverse employment action is viewed
objectively, and the question is whether the employment action was ‘objectively intolerable to a
reasonable person.’” Stewart, 815 App’x. at 17 quoting Policastro, 297 F.3d at 539.
According to Defendants, Ingram’s Sex Discrimination claim against them in their
individual capacities must fail as the law prohibits such individual liability. Furthermore, her
Sex Discrimination claims against them in their official capacities also fails because she has not
sufficiently alleged an adverse employment action or described a similarly situated comparator.
Her reassignment outside Lewis Elementary without loss of pay cannot serve as an adverse
action and her male comparator was a full-time teacher and not a substitute nor a volunteer. As
such, he was entitled to more due process under Ohio law than she was. Thus, he was not
similarly situated to her in all relevant respects such that she can meet the pleading requirements
of a Sex Discrimination claim.
Ingram alleges she has sufficiently pled discrimination claims under Ohio and federal law
as she pled she lost her ability to work at Lewis elementary and lost her employment, including

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paid work as a Backup Media Specialist and Testing Assistant. She further disputes that she was
reassigned to work at another school. These create issues of fact permitting her claims to
proceed. See Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 470 (6th Cir. 2012) Barton v.
Zimmer, 662 F.3d 448, 454 (7th Cir.2011) (noting that adverse employment actions include
transfers that reduce future career prospects).
Ingram further contends that regardless of whether her comparator was a full-time
teacher, both teachers and substitute teachers are afforded the same protections under the Solon
District Policy 3362. Thus, for purposes of her Sex Discrimination claim she need only show
she and her comparator were similarly situated in all relevant respects.
The Court holds that Defendants cannot be held liable in their individual capacities for
unlawful Sex Discrimination. Under Title VII, the Sixth Circuit has explained that “the statute
as a whole, the legislative history and the case law support the conclusion that Congress did not
intend individuals to face liability under the definition of ‘employer.” Delozier v. Bradley Cty.
Bd. of Educ., 44 F. Supp. 3d 748, 766 (E.D. Tenn. 2014) quoting Wathen v. Gen. Elec. Co., 115
F.3d 400, 405–06 (6th Cir.1997) (noting that “an individual employee/supervisor, who does not
otherwise qualify as an ‘employer,’ may not be held personally liable under Title VII”).
However, concerning their official capacities, Ingram need not plead all the elements of a
prima facie Sex Discrimination claim at the pleading stage. “Importantly, the familiar
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), is inapplicable on a Rule 12(b)(6)
motion to dismiss. That is to say, a plaintiff need not allege facts specifically indicating that the
plaintiff could carry the burden she might ultimately bear under McDonnell Douglas. This is

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because McDonnell Douglas ‘is an evidentiary standard, not a pleading requirement.’” Holland
v. LG Elecs. U.S.A., Inc., No. 3:20-CV-00706, 2021 WL 130529, at *2 (M.D. Tenn. Jan. 14,
2021) quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002).
A review of the Complaint reveals that Ingram has sufficiently alleged a Sex
Discrimination claim under federal and Ohio law. Defendants challenge her adverse
employment action and similarly situated comparator; but at this stage, the Court takes her
allegations as true. According to her Complaint, she lost her employment as a result of
Defendants’ discrimination. Loss of employment is an adverse employment action as is
reassignment with material differences in job duties. At the pleading stage, these allegations are
sufficient to support her Sex Discrimination claim.
Furthermore, her allegation that she was similarly situated to her alleged harasser who
was male and was afforded the full process due under the District’s Policy 3362 while she was
not, resulting in only her being disciplined, at this stage of the proceedings, is also sufficient to
support her discrimination claim. As stated above, Plaintiff at the pleading stage is not required
to plead the elements of a prima facie claim of discrimination. Here, she has alleged she was
treated differently than a male coworker for the same conduct, even though the District Policy on
harassment required the Defendants to afford them the same process, resulting in her loss of
employment and pay. At the pleading stage this is sufficient. Ingram’s allegations will
ultimately be put to the evidentiary test of the McDonnell/Burdine paradigm. For now, however,
her Sex Discrimination claims under federal and Ohio law survive.
Retaliation
In her Complaint, Ingram alleges she suffered loss of her employment the day after she

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complained of harassment and a hostile work environment. She was further retaliated against
when Defendants failed to provide her due process before issuing their disposition against her.
“For retaliation claims in Ohio, Federal law provides the applicable analysis for reviewing
retaliation claims.” Baker v. Buschman Co., 127 Ohio App.3d 561, 568, 713 N.E.2d 487 (Ohio
Ct.App. 12th Dist.1998) (internal citation omitted). “As such, the same burden shifting analysis
that governs the Court's consideration of retaliation claims under Title VII applies to retaliation
claims under Ohio Rev. Code § 4112.” McBroom v. Barnes & Noble Booksellers, Inc., 747 F.
Supp. 2d 906, 913 (N.D. Ohio 2010)
Title VII's anti-retaliation provision “protects employees from conduct that would have
‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ”
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir. 2008) (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Absent direct evidence of retaliation the
prima facie elements of a retaliation claim are that: (1) plaintiff engaged in protected activity
under Title VII; (2) the exercise of her protected rights was known by Defendants; (3) as a result,
Defendants took an action that was materially adverse to her; and (4) there was a causal
connection between the protected activity and the adverse action. Sizemore v. Edgewood Bd. of
Educ., No. 1:19-CV-555, 2020 WL 1904726, at *5 (S.D. Ohio Apr. 17, 2020) citing Barrow v.
City of Cleveland, 773 F. App'x 254, 261 (6th Cir. 2019).
In considering these elements, “there is little question that reporting alleged sexual
misconduct in the workplace is a protected activity under Title VII.” Sizemore, No.
1:19-CV-555, 2020 WL 1904726, at *6.
Defendants do not directly move on Plaintiff’s Retaliation claim and do not discuss the

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elements of a Retaliation claim in their Motion. However, insofar as their Motion relies upon
Ingram’s failure to allege an adverse employment action, the Court has already determined she
has alleged loss of employment and reassignment, both of which are sufficient to support a
Retaliation claim. Therefore, the Retaliation claim survives dismissal.
Breach of Fiduciary Duty
According to Ingram’s Complaint, in his role as District Compliance Officer, Regano
owed Ingram a fiduciary duty to conduct the investigation in a fair and unbiased manner.
Furthermore, Regano was bound by Ohio ethics rules and his failure to conduct the investigation
in an ethical manner breached his fiduciary duty.
Likewise, Ingram alleges Bolden, as District Business Manager, owed Ingram a fiduciary
duty to conduct the investigation in an ethical manner as he was likewise subject to Ohio’s
ethical rules. Also, Bolden was designated by Regano to head the investigation of Ingram.
Defendants contend Ingram’s Breach of Fiduciary Duty fails because her Complaint does
not allege any fiduciary duty owed Ingram by Defendants. In addition, they argue the law does
not recognize a fiduciary duty created by ethics rules like the District’s anti-harassment policy.
Ingram responds that a failure to act as a neutral investigator creates a fiduciary
obligation.
“A fiduciary relationship is one in which one party to the relationship places a special
confidence and trust in the integrity and fidelity of the other party to the relationship, and there is
a resulting position of superiority or influence, acquired by virtue of the special trust.” Ohio
Bureau of Workers' Comp. v. MDL Active Duration Fund, Ltd., 476 F. Supp. 2d 809, 821 (S.D.
Ohio 2007); Ed Schory & Sons, Inc. v. Society Natl. Bank, 75 Ohio St.3d 433, 442, 662 N.E.2d

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1074 (1996).
Here, the fiduciary relationship requires a showing that the Defendants agreed to act
primarily for the Plaintiff’s benefit. See In re Nat'l Century Fin. Enterprises, Inc., Inv. Litig.,
604 F. Supp. 2d 1128, 1148 (S.D. Ohio 2009). (“ A fiduciary is ‘a person having a duty, created
by his undertaking, to act primarily for the benefit of another in matters connected with his
undertaking.’ ”) quoting Strock v. Presnall,, 38 Ohio St.3d 207, 216, (1988) 527 N.E.2d at 1243.
Ingram has failed to allege such a relationship because the plain language of the District antiharassment policy, attached to her Complaint, demonstrates that Defendants’ obligations run to
the accused, the accuser, but primarily to the Board.
Under the heading “Anti-Harassment Compliance Officer,” the Board designates the
following individuals to serve as ‘Anti-Harassment Compliance Officers’ for the District” and
names Regano as one of the designated officers. The Compliance Officer is appointed to discuss
concerns of harassment with students, District Community members and third parties. The
Compliance Officer acts as an intermediary to resolve conflicts between the accused and accuser
when they agree to an informal resolution process. When a formal complaint is filed, the
Compliance Officer investigates and makes recommendations to the Superintendent. Thus, the
Compliance Officer acts primarily on behalf of the Superintendent. He or she is an employee of
the District, is appointed by the District and investigates complaints on behalf of the District and
makes his or her recommendation to the Board. The Compliance Officer investigates claims
made by students, staff and third parties, so his or her duties do not run solely for the benefit of
staff members like Ingram. In fact, in the informal complaint process, the Compliance Officer
attempts to reach a resolution for the benefit of all involved, including the accused. The

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Compliance Officer is tasked with keeping all parties informed of the status of the investigation
and providing information to the accused and instructing the accused on the nature of the
allegations and his or her right to submit a response. Ultimately, in the formal complaint setting,
the Compliance Officer prepares a recommendation for the Superintendent’s review and
decision. Under these types of circumstances the Sixth Circuit has held there is no fiduciary
duty. See Helm v. Ratterman, 778 F. App'x 359, 374 (6th Cir. 2019). (“These provisions show
that Defendants’ duties under the policy ran to several different persons and institutions; thus,
Helm has not adequately shown that Defendants, through the ORI policy, promised to act
primarily for his benefit so as to render them fiduciaries.”). Therefore, Plaintiff has failed to
plead a fiduciary relationship between her and Defendants; and thus, Defendants are entitled to
judgment in their favor.
Civil Conspiracy
Lastly, Ingram alleges Defendants conspired with the District to deny her due process
rights and property interest in her employment by maliciously and willfully inserting themselves
in place of the Board during their investigation of the competing harassment claims.
Defendants argue they cannot be liable for civil conspiracy in their official capacities
because the intracorporate conspiracy doctrine expressly holds that individual employees of the
same entity cannot conspire with each other when acting in the course and scope of their
employment. The Sixth Circuit has conclusively held, “the intracorporate conspiracy doctrine
applies in § 1983 suits to bar conspiracy claims where two or more employees of the same entity
are alleged to have been acting within the scope of their employment when they allegedly
conspired together to deprive the plaintiff of his rights.” Jackson v. City of Cleveland, 925 F.3d

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793, 818 (6th Cir. 2019), cert. denied sub nom. City of Cleveland, Ohio v. Jackson, 140 S. Ct.
855, 205 L. Ed. 2d 460 (2020). Ingram does not contest judgment for Defendants in their official
capacity for Civil Conspiracy; but instead alleges Defendants are not entitled to judgment in their
individual capacities because they acted willfully and maliciously outside the scope of their
employment and in bad faith. This also puts them outside the Ohio immunity statute found at
O.R.C. § 2744.
“Ohio law provides immunity for employees of political subdivisions under R.C. §
2744.03(A)(6). This provision states that a political subdivision employee is immune from
liability in a civil action for claims arising from the employee's official actions unless one of
three exceptions applies: (1) the employee's acts were manifestly outside the scope of
employment or official responsibilities; (2) the acts were with malicious purpose, in bad faith, or
in a wanton or reckless manner; or (3) liability is expressly imposed by another section of the
Revised Code. R.C. 2744.03(A)(6)(a)-(c).” Curry v. Blanchester, 2010-Ohio-3368, ¶ 29.
“However, Ohio courts have generally drawn from agency-law principles to hold that
‘conduct is within the scope of employment if it is initiated, in part, to further or promote the
master's business.” Jackson v. McDonald (2001), 144 Ohio App.3d 301, 307, 760 N.E.2d 24;
Chesher v. Neyer, 477 F.3d 784, 797 (6th Cir. 2007). “In the context of immunity, ‘[a]n
employee's wrongful act, even if it is unnecessary, unjustified, excessive or improper, does not
automatically take the act manifestly outside the scope of employment.’” Curry,
2010-Ohio-3368, ¶ 30 quoting Jackson at 307, 760 N.E.2d 24. “It is only where the acts of state
employees are motivated by actual malice or other [situations] giving rise to punitive damages
that their conduct may be outside the scope of their state employment.” Id.

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In her Complaint, Ingram alleges Bolden and Regano improperly participated and
directed the investigation into her retaliation complaint even though they were respondents to the
complaint. Shortly thereafter, Ingram suffered an adverse action. These allegations are
sufficient to allow her claim of Civil Conspiracy to proceed against Defendants in their
individual capacities as they state a plausible claim for the same and therefore fall within the
exceptions to Ohio’s immunity statute.
Therefore, for the foregoing reasons, the Court grants Defendants’ Motion for Judgment
on the Pleadings on Ingram’s Due Process claim, individual capacity Title VII claims, Breach of
Fiduciary Duty claim and official capacity Civil Conspiracy claim. The Court denies judgment
for Defendants on all other claims.
IT IS SO ORDERED.

/s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge

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