Hazelett v. Lager, et al
Filing
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Memorandum Opinion and Order: For the reasons set forth herein, defendants' motion for judgment on the pleadings on all counts of the complaint as to the Portage County Board of Commissioners and the Portage County Public Defender Commission (Doc. No. 16 ) is granted. Judge Sara Lioi on 9/21/2016. (S,He)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEONARD HAZELETT,
PLAINTIFF,
vs.
DENNIS DAY LAGER, et al.,
DEFENDANTS.
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CASE NO. 5:15-cv-2201
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court is a motion for partial judgment on the pleadings filed by defendants
Dennis Day Lager, Portage County Board of Commissioners and Portage County Public
Defender Commission (Doc. No. 16 [“Mot.”]), plaintiff’s memorandum in opposition (Doc. No.
17 [“Opp’n”]), and defendants’ reply (Doc. No. 18 [“Reply”]). For the reasons set forth herein,
the motion is granted.
I. BACKGROUND
This case originated in Portage County Court of Common Pleas on October 8, 2015 and
was removed to this Court on October 26, 2015. (Doc. No. 1, Notice of Removal.) In his
complaint (Doc. No. 1-2, Complaint [“Compl.”]), plaintiff Leonard Hazelett (“Hazelett” or
“plaintiff”) alleges, under Ohio law only, that defendants discriminated against him on the basis
of age when they terminated his employment and hired a younger person to replace him (Count
I), and also retaliated against him for complaining about office policies favoring younger
employees (Count II). Under 42 U.S.C. § 1983 and the Fourteenth Amendment, plaintiff also
raises a federal claim of deprivation of a property right (his continued employment) without due
process (Count III).
Plaintiff identifies three defendants: (1) Dennis Day Lager, Portage County Public
Defender (“Lager”); (2) Portage County, Ohio/Portage County Board of Commissioners
(respectively, the “County” and the “Board”); and (3) Portage County Public Defender
Commission (the “Commission”).1 Plaintiff alleges that the County “is responsible for adopting
and authorizing the employment practices” of the Portage County Public Defender’s Office (the
“Office”) and the Commission. (Compl. ¶ 3.) “The County is sued through the Portage County
Board of Commissioners, which is named pursuant to [Ohio Rev. Code] § 305.12.” (Id.)2
Plaintiff further alleges that the Board appoints the Commission “to oversee the operations of the
[Office]” and to “appoint[ ] the Portage County Public Defender.” (Id. ¶ 4.) Plaintiff alleges that,
for purposes of 42 U.S.C. § 1983, both the Board and the Commission are “persons” acting
under state law. (Id. ¶¶ 3, 4.)
Hazelett alleges that he was hired as a senior attorney in the Office on August 18, 2008.
His date of birth is January 31, 1954. (Id. ¶ 7.) Upon hire, Lager represented to Hazelett that he
was required to serve a one-year probationary period and, following that period, his employment
would be protected from termination absent just cause. (Id. ¶¶ 8-9.) Plaintiff allegedly “served as
an excellent employee at the [Office], zealously representing his clients, and regularly receiving
favorable feedback from his clients and peers.” (Id. ¶ 10.)
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Although the individual members of the Board and the Commission are listed in the complaint’s caption, in the
body of the complaint, and among the list of parties on the docket, they do not appear to be named in anything other
than their official capacities. (See Compl. ¶¶ 1-4.) There are no allegations directed specifically toward any of them
as individuals. See Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989) (“[P]laintiffs seeking damages under § 1983
[must] set forth clearly in their pleading that they are suing the state defendants in their individual capacity for
damages, not simply in their capacity as state officials.”) For that matter, there are also no allegations against
defendant Lager in his individual capacity. The complaint merely alleges that he “is presently employed as the
Portage County Public Defender[,]” and, at all relevant times, “was acting under the color of state law.” (Compl. ¶
2.)
2
Section 305.12 provides, in relevant part, that “[t]he board of county commissioners may sue and be sued[.]”
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Plaintiff “developed concerns regarding Lager’s hostile treatment of Plaintiff and several
other employees of the [Office].” (Id. ¶ 11.) He alleges that Lager “frequently displayed
preferential behavior toward younger employees, including frequently conducting closed-door
meetings and personal mentoring sessions with Mrs. Heather Ninni, the newest attorney at the
[Office] who previously served as an intern to Lager.” (Id. ¶ 12.) Lager also “allowed younger
employees, including Mrs. Heather Ninni, to violate attendance and conduct policies without
punishment[,]” (id. ¶ 13), and “maintained informal office policies, including but not limited to
the ‘bye week’ system, that benefited younger attorneys at the expense of older attorneys[,]” (id.
¶ 14).
On January 19, 2015, “Lager demoted Plaintiff from his position as senior attorney to a
general ‘floater’, indicating he was ‘replacing’ Plaintiff and transferring Plaintiff’s previous
docket to Mrs. Ninni, a significantly younger attorney.” (Id. ¶ 15.) On March 4, 2015, “Plaintiff
reported his concerns to Ms. Carol Crimi, an attorney, and a member of the [Commission].” (Id.
¶ 16.) Plaintiff “informed Ms. Crimi about the issues occurring in the [O]ffice and further
informed her that he was concerned Lager was seeking an excuse to fire him so that Plaintiff
would not be eligible to receive his retirement pursuant to the Ohio Public Employees
Retirement System (OPERS).” (Id.) On March 12, 2015, “Ms. Crimi informed Plaintiff that he
‘needed to turn elsewhere’ and that the role of the Commission was limited to setting the budget
and filing reports.” (Id. ¶ 17.)
Subsequently, during a staff meeting, Lager confronted his staff with two issues: “(1) the
local prosecutors’ perception that Plaintiff had been discriminated against by Lager with respect
to another member of the staff, Mrs. Heather Ninni; and (2) the fact that someone in the [Office]
had been spreading slanderous allegations that Lager was having an inappropriate sexual
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relationship with Mrs. Heather Ninni.” (Id. ¶ 18.) Lager then “went around the room, pointing at
each member of his staff, and asking each member of his staff whether they had reported these
allegations to the Commission.” (Id. ¶ 19.) “Plaintiff and at least one other employee informed
Lager that they had spoken to Ms. Crimi, but that none of the employees had spread any such
rumors.” (Id. ¶ 21.) Lager threatened “to use any means available, legal or otherwise” “to
identify and punish anyone involved in informing Ms. Crimi about his relationship with Mrs.
Ninni.” (Id. ¶¶ 20, 21.)
In early April 2015, plaintiff applied for and received a scholarship to attend a seminar on
trial advocacy, which he had also attended in 2011 and 2013, at no cost to the Office. Lager
confronted plaintiff about applying for and attending this seminar “without Lager’s permission.”
(Id. ¶¶ 22-24.)
On May 4, 2015, plaintiff was placed on paid administrative leave pending a predisciplinary hearing relating to his alleged failure to obtain approval to attend the trial advocacy
seminar. (Id. ¶ 25, 26.) At the hearing on May 8, 2015, Lager “informed Plaintiff that he was
terminating his employment, but offered to allow him to resign ‘voluntarily’ if he would sign a
separation agreement and release.” (Id. ¶ 27.)3
Plaintiff received a letter terminating his employment effective May 15, 2015. (Id. ¶ 28.)
Immediately thereafter, plaintiff was replaced by Mr. Eli R. Heller, a person nearly thirty years
younger than plaintiff. (Id. ¶ 29.)
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The complaint does not indicate whether plaintiff accepted the offer to resign.
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II. DISCUSSION
A.
Legal Standard
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “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 quotes and citation omitted). A motion for judgment on the pleadings “is granted when
no material issue of fact exists and the party making the motion is entitled to judgment as a
matter of law.” Id. at 582 (quotes and citation omitted).
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Although this pleading standard does not
require great detail, the factual allegations in the complaint “must be enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007) (citing authorities). In other words, “Rule 8(a)(2) still requires a
‘showing,’ rather than a blanket assertion, of entitlement to relief.” Id. at 556, n.3 (criticizing the
Twombly dissent’s assertion that the pleading standard of Rule 8 “does not require, or even
invite, the pleading of facts”).
“To survive a motion to dismiss [or for judgment on the pleadings], 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Twombly, 550 U.S. at 570). “‘[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—
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that the pleader is entitled to relief.’” Top Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 630 (6th
Cir. 2013) (quoting Iqbal, 556 U.S. at 679). Further, “[w]hile legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. “The court need not,
however, accept unwarranted factual inferences.” Total Benefits Planning Agency, Inc. v. Anthem
Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Morgan v. Church’s Fried
Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
B. Analysis
Defendants have filed the instant motion seeking judgment on the pleadings as to the
Board and the Commission, arguing that they were both improperly named since neither of them
was plaintiff’s employer. (Mot. at 129.)4 The Board and the Commission seek dismissal of all
claims against them.
Plaintiff’s first two claims are raised under the Ohio statute that makes it “an unlawful
discriminatory practice … [f]or any employer, because of the … age … of any person, to
discharge without just cause …” Ohio Rev. Code § 4112.02(A), and/or for any person to retaliate
against another for opposing unlawful discrimination, Ohio Rev. Code § 4112.02(I).
Defendants argue that neither the Board nor the Commission had an employment
relationship with plaintiff. (Mot. at 130-31.) They assert that these are statutorily-created entities,
with powers and duties circumscribed by law. They assert that, under Ohio Rev. Code § 120.14,
there is no basis for plaintiff to claim an employer/employee relationship between himself and
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All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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the Commission because the statute gives the Commission no power to hire, fire, or otherwise
alter the terms of employment of assistant public defenders, or to control the policies or
procedures or the day-to-day operations of the Office. (Id. at 131.) They further argue that the
Board’s duties vis-a-vis the Office and its employees are even more removed than the
Commission’s in that the Board only approves certain actions of the Commission that have
financial implications for the County. (Id., citing Ohio Rev. Code § 120.14(F).)
The Board and the Commission argue that Lager is the appointing authority for assistant
public defenders, that he is responsible for hiring and firing, and that he is “the only appropriate
defendant in this lawsuit.” (Id. at 132, citing Ohio Rev. Code § 120.15(B)(4).) That said,
defendants deny that Lager “committed any wrongdoing and anticipate filing a separate
dispositive motion on his behalf following the completion of discovery.” (Id., n. 2.)
In opposition, plaintiff argues, without citation to even a single paragraph of the
complaint, that he has “plausibly state[d] a claim against [these defendants because he] … has
alleged that Mr. Lager, the [Commission], and the [Board] have violated R.C. 4112.” (Opp’n at
136-37.) He further argues that his “allegation that an employment relationship exists between
himself, the [Board], and the [Commission] is, at the very least, plausible.” (Opp’n at 137.) The
problem with this argument is that there are no allegations in the complaint of an employment
relationship between plaintiff and the Board and/or plaintiff and the Commission. Moreover,
even if there were such allegations, as properly pointed out by defendants in their reply, the
Court need not accept as true legal conclusions couched as factual allegations. (Reply at 149-50,
citing Bradley v. City of Cleveland, No. 1:11CV781, 2012 WL 775106, at *2 (N.D. Ohio Mar. 7,
2012).)
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Plaintiff further cites Genaro v. Cent. Transp., Inc., 703 N.E.2d 782 (Ohio 1999) for the
proposition that supervisors and/or managers can be liable under Ohio Rev. Code Chapter 4112.
(Opp’n at 138.) Plaintiff asserts that, because Lager was employed by the Board and/or the
Commission, either or both of these entities can be vicariously liable for his discriminatory
conduct as his supervisor or manager. (Id.)
Plaintiff has not alleged under any appropriate statutory authority, and cannot do so, that
he was employed by either the Board and/or the Commission. Nor has he alleged that either the
Board or the Commission served as his supervisor or manager. Plaintiff misreads Genaro, which
held that Ohio law does provide for claims against supervisors or managers in their individual
capacity when they commit discriminatory acts for which the actual employer is held jointly and
severally liable. Genaro, as defendants properly argue, did not “abrogate the requirement that an
employment relationship must exist” between the plaintiff and the defendant. (Reply at 154.)
Judgment on the pleadings as to Counts I and II is warranted with respect to both the
Board and the Commission and the same shall be granted.
Count III of plaintiff’s complaint asserts a procedural due process claim under the
Fourteenth Amendment and § 1983. The Board and the Commission argue that they are entitled
to judgment on the pleadings because plaintiff has failed to allege any official government policy
or custom that led to any deprivation of his rights. (Mot. at 132, citing Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (a
governmental entity cannot be held liable on a theory of respondeat superior, but only if its own
official policy or custom caused a constitutional deprivation).) They both assert that they have no
authority to promulgate policies on behalf of the Office and, even if they had such authority,
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plaintiff has failed to allege any policy that caused him to suffer deprivation of his property
rights.
In opposition, plaintiff argues that his complaint “plausibly sets forth a Monell claim[]”
because he alleged that he reported his concerns to Ms. Crimi, a member of the Commission, that
defendants violated his constitutional right to procedural due process, and that the Commission
“at the very minimum took an act, which most certainly represented official policy, when they
voted to support Mr. Lager in firing Mr. Hazelett.” (Opp’n at 139, citing Ex. B to the
opposition.)5 Plaintiff also argues, correctly, that “even a single act by a ‘decision maker
possess[ing] final authority to establish municipal policy with respect to the action ordered’ may
suffice in demonstrating that policy or custom.” (Opp’n at 139, quoting Pembaur v. Cincinnati,
475 U.S. 469, 481, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).)
The Court need not take plaintiff’s legal assertions as true, and there are no facts in the
complaint that allege a Monell claim against either the Board or the Commission. Nor would
Exhibit B salvage the complaint, even if this Court were to consider it.
Exhibit B consists of minutes of a meeting of the Commission where the members
“entertained a report from Mr. Lager on continuing personnel issues” including concerns about
Hazelett and another attorney. At Lager’s request for “a vote expressing their support or
opposition to [his] position that [the two attorneys] should be separated from the office[,]” the
Commission voted 3-1 “to support [Lager’s] position[.]”
Given the statutorily-defined powers and duties of the Commission (see Ohio Rev. Code
§ 120.14), these minutes reflect no more than a type of second opinion or a vote of confidence
5
The Court need give no consideration to the exhibits attached to plaintiff’s opposition brief. The point of a motion
for judgment on the pleadings is to test the sufficiency of the pleadings and, ordinarily, matters outside the pleadings
are not to be considered. Marsilio v. Vigluici, 924 F. Supp. 2d 837, 846 (N.D. Ohio 2013).
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given to Lager by the Commission. The minutes do not, and cannot, change the legal reality that
the Commission’s statutorily-defined powers and duties do not include hiring or firing personnel
in the public defender’s office and, further, do not include setting policy for that office. Even if
the Commission had attempted to ratify Lager’s actions by way of its “vote,” as plaintiff argues
when advancing his “single act by a decision-maker theory,” that ratification would have been
completely ineffective, given that the Commission has no such authority and cannot modify its
authority by its own actions.
As to the Board, plaintiff alleges, without citation to any statutory authority, that “the
County is responsible for adopting and authorizing the employment practices of the [Office] and
the [Commission].” (Compl. ¶ 3.) This is no more than a legal conclusion masquerading as a
factual allegation, and the Court need not accept it as true. In fact, although under Ohio law the
Board has the authority to establish the Commission, see Ohio Rev. Code § 120.13(A), it has no
day-to-day supervision over the Commission or over the Office. See generally Ohio Revised
Code Chapter 305 (Board of County Commissioners – Generally); Chapter 307 (Board of
County Commissioners – Powers). At most, the Board has the authority to approve the
Commission’s budget for the Office. See Ohio Rev. Code § 120.14(F). Plaintiff offers nothing in
either his complaint or his opposition brief to support his conclusory assertions, much less to
support any claim that the Board had any authority with respect to the decision to terminate his
employment, or that the termination resulted from any policy, practice or custom of the Board.
Defendants are correct that the complaint fails to state a claim under Monell and,
therefore, the Board and the Commission are entitled to judgment on the pleadings as to Count
III, and the same shall be granted.
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III. CONCLUSION
For the reasons set forth above, defendants’ motion for judgment on the pleadings on all
counts of the complaint as to the Portage County Board of Commissioners and the Portage
County Public Defender Commission (Doc. No. 16) is granted.
IT IS SO ORDERED.
Dated: September 21, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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