Curry v. Theaker et al
Memorandum of Opinion and Order: The Motion to Dismiss filed by the Federal Defendants (Doc. No. 7 ) and the Motion to Dismiss filed by Vera Boggs (Doc. No. 8 ) are granted. The EEOC, Sells, Eisele, Garland, and Boggs are dismissed from th is action. Furthermore, Plaintiff's claims against Theaker, Coker, Remy, and Kuntz meet the criteria set forth in Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999), and are also dismissed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. This action will proceed solely against the City of Mansfield. Judge Patricia A. Gaughan on 11/16/21. (LC,S) Modified on 11/17/2021 (LC,S).
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
City of Mansfield, et al.,
CASE NO. 1:21 CV 1455
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Pro se Plaintiff Caroline Curry filed this action in the Richland County Court of
Common Pleas under Title VII, 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and 42 U.S.C. § 1983
against the City of Mansfield, Mansfield Mayor Theaker, Mansfield Human Resources
Employee Mr. Kuntz, Mansfield Wastewater Treatment Plant Manager Bob Coker, Mansfield
Public Works Director Dave Remy, the United States Equal Employment Opportunity
Commission (“EEOC”), EEOC State and Local Coordinator Jeremy A. Sells, EEOC District
Director Michelle Eisele, United States Attorney General Merrick B. Garland, and Ohio Civil
Rights Commission Cleveland Regional Director Vera Boggs. The Defendants removed the
action to federal court. In the Complaint, Plaintiff alleges the City of Mansfield discriminated
against her on the basis of race by failing to hire her for open jobs. She seeks monetary
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The Federal Defendants (the EEOC, Sell, Eisele and Garland) filed a Motion to Dismiss.
(Doc. No. 7). Boggs also filed a Motion to Dismiss. (Doc. No. 8).
Plaintiff’s Complaint contains very little factual information. She claims the City of
Mansfield did not post the Operations Supervisor job and instead gave it to an internal candidate
“Sherry” who the City had trained for a year for the position. She states, “She was doing the job
that I had for 30 years in which the City did not give me a chance to be rehired as similarly
situated employees.” (Doc. No. 1-1 at PageID #:12). Plaintiff does not allege facts to indicate
when or why she left her job with the City. She states the employees were disrespectful,
insubordinate, and performed their jobs unsatisfactorily. She contends she was trying to get the
employees to do their jobs so that they could complete mandated work; however, the City
labeled her as a defiant employee who caused problems with management.
Plaintiff alleges that when Bob Coker was promoted to Manager, the City of Mansfield
did not fill the supervisor job he had vacated. She contends they instead waited for a year to fill
the position and then hired internally by promoting Sherry. Plaintiff indicates that Sherry’s
promotion left an opening in the Environmental Compliance Supervisor position. She alleges
that the position is still open and the City of Mansfield has not set a date for hiring someone to
fill this position. She contends they are proceeding this way to prevent her from applying for
the jobs. She indicates she is a black female over the age of 50 and the Defendants’ actions
discriminated against her on the basis of race in violation of Title VII, as well as 42 U.S.C. §§
1981 and 1985.
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The Federal Defendants and Boggs filed Motions to Dismiss. (Doc. Nos. 7 and 8). The
Federal Defendants claim sovereign immunity. Both the Federal Defendants and Boggs claim
Plaintiff did not allege any facts suggesting a possible basis for a claim against them and,
therefore, failed to establish subject matter jurisdiction or personal jurisdiction, and failed to
state a claim upon which relief may be granted.
STANDARD OF REVIEW
A Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a
Court’s subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that
may not grant relief absent a constitutional or valid statutory grant of jurisdiction and are
presumed to lack jurisdiction in a particular case unless it is affirmatively established.” See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377(1994); Ohio ex rel. Skaggs v.
Brunner, 549 F.3d 468, 474 (6th Cir. 2008). Rule 12(b)(1) motions may challenge jurisdiction
facially or factually. United States v. Richie, 15 F.3d 592, 598 (6th Cir.1994). In a facial attack,
the challenger asserts that the allegations contained in a Complaint are insufficient on their face
to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth
of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Id. A
challenge to subject matter jurisdiction may be considered a factual attack when the attack relies
on extrinsic evidence, as opposed to the pleadings alone, to contest the truth of the allegations.
When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the function of
the Court is to test the legal sufficiency of the Complaint. See Mayer v. Mulod, 988 F.2d 635,
638 (6th Cir. 1993). The Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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(2007), and recently in Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009), clarified the law
regarding what the Plaintiff must plead in order to survive a Motion to Dismiss under Rule
When determining whether the Plaintiff has stated a claim upon which relief can be
granted, the Court must construe the Complaint in the light most favorable to the Plaintiff,
accept all factual allegations as true, and determine whether the Complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555. The
Plaintiff’s obligation to provide the grounds for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
Although a Complaint need not contain detailed factual allegations, its “factual allegations must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the Complaint are true.” Id. The Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Court in Iqbal, 556 U.S. at 677-678 , further explains the “plausibility” requirement,
stating that “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.” Iqbal, 556 U.S. at 678. Furthermore, “the plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a Defendant acted
unlawfully.” Id. This determination is a “context-specific task that requires the reviewing
Court to draw on its judicial experience and common sense.” Id. The Sixth Circuit has held
that a Court may consider allegations contained in the Complaint, as well as exhibits attached to
or otherwise incorporated in the Complaint, all without converting a Motion to Dismiss to a
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Motion for Summary Judgment. FED. R. CIV. P. 10(c); Weiner v. Klais & Co., 108 F.3d 86, 89
(6th Cir. 1997).
The United States, as sovereign, is immune from suit unless it consents to be sued.
United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); McGinness
v. U.S., 90 F.3d 143, 145 (6th Cir. 1996). A waiver of sovereign immunity must be strictly
construed, unequivocally expressed, and cannot be implied. U.S. v. King, 395 U.S. 1,4 (1969);
Soriano v. U.S., 352 U.S. 270, 276 (1957). When enacting a statute, Congress defines the exact
terms and conditions upon which the government may be sued under that statute, and the terms
of the United States’ consent define the parameters of federal court jurisdiction to entertain suits
brought against the United States. United States v. Orleans, 425 U.S. at 814; Honda v. Clark,
386 U.S. 484, 501 (1967).
Plaintiff cites three statutes as the basis for relief against the Defendants. The first of
these statutes is Title VII, 42 U.S.C. § 2000e, which governs discrimination in employment.
Plaintiff was not employed by the federal government so that statute is not applicable here. The
second and third statutes are 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The express language of
those statutes limits government liability to those acting under color of state law. By omitting
any reference to those acting under color of federal law, Congress did not consent to suit or
waive the sovereign immunity of the United States or its employees for § 1981 or § 1983
claims. Selden v. United States Department of Housing and Urban Development, 785 F.2d 152
(6th Cir. 1986)(§§ 1981 and 1982 did not constitute a waiver of the sovereign immunity of the
United States); Omeli v. National Council of Senior Citizens, 2001 WL 700849 (6th Cir.
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2001)(Congress did not waive the sovereign immunity of the United States by enacting §§ 1981
and 1985); Correctional Services Corporation v. Malesko, 534 U.S. 61, 70 (2001)(United States
did not waive liability for claims under § 1983); Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 484-86 (1994)(United States cannot be sued under § 1983). This Court lacks subject
matter jurisdiction over claims against the EEOC, Sells, Eisele, and Garland.
Moreover, the Federal Defendants and Boggs all contend that Plaintiff does not allege
any facts connecting them to the allegations in the Complaint. To meet federal notice pleading
requirements of Federal Civil Procedure Rule 8, the Complaint must give each of the
Defendants fair notice of what the Plaintiff’s legal claims against them are and the factual
grounds upon which they rest. Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 437
(6th Cir. 2008). These Defendants are not mentioned at all in the body of the Complaint. Any
claims of discrimination against them would be speculative, at best. Plaintiff fails to state a
claim upon which relief may be granted against the EEOC, Sells, Eisele, Garland, and Boggs.
Their Motions to Dismiss (Doc. Nos. 7 and 8) are granted.
Although Theaker, Coker, Remy, and Kuntz did not file a Motion to Dismiss, this Court
is permitted to conduct a limited screening procedure and to dismiss, sua sponte, a fee-paid
Complaint filed by a non-prisoner if it appears that the allegations are “totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (per curiam)(citing Hagans v. Lavine, 415 U.S. 528,
536–37 (1974)). Dismissal on a sua sponte basis is also authorized where the asserted claims
lack an arguable basis in law, or if the Court lacks subject matter jurisdiction over the matter.
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Id. at 480; see also Neitzke v. Williams, 490 U.S. 319 (1989); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990).
As an initial matter, Plaintiff’s Title VII claims against individual defendants lack an
arguable basis in law. Title VII makes it unlawful for an employer to discriminate against an
individual because of that individual’s race. 42 U.S.C. § 2000e. An individual employee or
supervisor, who does not otherwise qualify as an “employer” as defined by the statute cannot be
held liable under Title VII. See Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997)
(finding that individual liability is prohibited under Title VII). Theaker, Coker, Remy, and
Kuntz do not qualify as employers under the statute. Plaintiff cannot bring Title VII claims
Finally, Plaintiff has not alleged facts to suggest a basis for claims against these
Defendants under § 1981 or § 1983. There are no factual allegations in the Complaint against
Theaker, Remy, or Kuntz. Plaintiff’s only allegation against Coker is that he was hired for a job
for which she believes she too should have received consideration. Plaintiff, however, does not
allege that Coker engaged in discriminatory actions. Plaintiff cannot establish the liability of
any Defendant absent a clear showing that the Defendant was personally involved in the
activities which form the basis of the alleged unconstitutional behavior. Rizzo v. Goode, 423
U.S. 362, 371 (1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept.
20, 1995). The Complaint simply contains no facts which reasonably associate Theaker, Coker,
Remy, or Kuntz to any of the Plaintiff’s claims.
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Accordingly, the Motion to Dismiss filed by the Federal Defendants (Doc. No. 7) and
the Motion to Dismiss filed by Vera Boggs (Doc. No. 8) are granted. The EEOC, Sells, Eisele,
Garland, and Boggs are dismissed from this action. Furthermore, Plaintiff’s claims against
Theaker, Coker, Remy, and Kuntz meet the criteria set forth in Apple v. Glenn, 183 F.3d 477,
479 (6th Cir. 1999), and are also dismissed. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this decision could not be taken in good faith. This action will
proceed solely against the City of Mansfield.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
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