Smith v. Hamilton County Juvenile Court Youth Center et al

Filing 26

ORDER granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim; Plaintiff shall serve Hamilton County with summons and the Amended Compliant within 20 days of the entry of this Opinion and Order. Signed by Judge Michael R. Barrett on 1/22/13. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Karen Smith,

Case No. 1:11-cv-328
Plaintiff,

Judge Michael R. Barrett

v.
Hon. Karla J. Grady, et al.,
Defendants.

ORDER
This matter is before the Court on Defendants' Motion to Dismiss. (Doc. 21).
Plaintiff has filed a memorandum in opposition (Doc. 24), and Defendants have filed
their reply (Doc. 25). This matter is now ripe for review.
I.

BACKGROUND
On May 19, 2011, Plaintiff Karen Smith ("Plaintiff") filed a Complaint against

Hamilton County, Hamilton County Board of County Commissioners, and Hamilton
County Juvenile Court Youth Center. (Doc. 1). On November 4, 2011, Plaintiff filed an
Amended Complaint against the Honorable Karla J. Grady in her official capacity as
Administrative Law Judge for the Hamilton County Juvenile Court, Duane Bowman in
his official capacity as Superintendent of the Hamilton County Juvenile Court Youth
Center and Hamilton County, Ohio (collectively, "Defendants"). (Doc. 14).
In her Amended Complaint, Plaintiff alleges that she is an African American
female over the age of 40 who was employed at the Hamilton County Juvenile Court
Youth's Center ("Youth Center") as a Security Officer from March 26, 2001 until her
termination on or about June 21, 2012. (Doc. 1, ¶¶ 13-15, 36). As a Security Officer,
1

part of her job responsibilities included "physically intervening with residents of the
Youth Center who were acting out." (Doc. 14, ¶ 16). After undergoing surgery on her
knee, Plaintiff, upon her request, had her position changed to Lobby Reception and
Security Officer where she was responsible for ensuring that the Lobby remained
adequately supplied at all times. (Doc. 14, ¶ 14). Plaintiff alleges that she later took
Family Medical Leave on various occasions to care for herself and her grandson. (Doc.
14, ¶¶ 23-24). After an incident in April 2010 regarding Plaintiff ordering toner, the thenSuperintendent Harvey Reed placed Plaintiff on administrative leave. (Doc. 14, ¶ 34).
She was terminated shortly thereafter allegedly as a result of the toner incident. (Doc.
14, ¶ 36).
Based on the above facts, among others, Plaintiff brings the following claims
against Defendants in the Amended Complaint (Doc. 14):
•

Count I: Interference and retaliation in violation of the Family Medical
Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.

•

Count II: Age discrimination in violation of the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq.

•

Count III: Age discrimination in violation of Ohio Revised Code § 4112, et
seq.

•

Count IV: Disability discrimination in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.

•

Count V: Disability discrimination in violation of Ohio Revised Code §
4112, et seq.

•

Count VI: Race discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000, et seq.

•

Count VII: Race discrimination in violation of Ohio Revised Code § 4112,
et seq.

2

On March 12, 2012, Defendants filed a motion seeking dismissal of Plaintiff's
claims on multiple grounds. (Doc. 21). First, they seek dismissal of Hamilton County as
a defendant on the bases that it is not sui juris, was not Plaintiff's employer, and was not
properly served. (Doc. 21, pp. 3-5). Second, they seek dismissal of all claims brought
under Ohio Rev. Code §§ 4112, et seq., the self-care provision of the FMLA, the ADEA,
and Title I of the ADA on the basis that they are barred by the Eleventh Amendment.
(Doc. 21, pp. 5-9). Third, they seek dismissal of Plaintiff's Title VII claim pursuant to the
"personal staff" exemption. (Doc. 21, pp. 9-10). Fourth and finally, they seek dismissal
of Plaintiff's request for punitive and emotional distress damages. (Doc. 21, pp. 10-11).
III.

ANALYSIS
A.

Motion to Dismiss Standard

Defendants move for dismissal for lack of subject matter jurisdiction under Fed.
R. Civ. P. 12(b)(1) and for failure to state a claim for relief under Fed. R. Civ. P.
12(b)(6). "A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face,
in which case all allegations of the plaintiff must be considered as true, or it can attack
the factual basis for jurisdiction, in which case the trial court must weigh the evidence
and the plaintiff bears the burden of proving that jurisdiction exists."

DLX, Inc. v.

Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). Facial attacks question the sufficiency of
the pleadings. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In reviewing a
motion on this basis, a court must take the material allegations in the complaint as true
and construe them in the light most favorable to the nonmoving party. Id. On the other
hand, a factual attack is "not a challenge to the sufficiency of the pleading's allegations,
but a challenge to the factual existence of subject matter jurisdiction[,]" and the court "is

3

free to weigh evidence and satisfy itself as to the existence of its power to hear the
case." Id.
In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6),
this Court must "'construe the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.'" Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).

"[T]o survive a motion to dismiss a

complaint must contain (1) 'enough facts to state a claim to relief that is plausible,' (2)
more than 'a formulaic recitation of a cause of action's elements,' and (3) allegations
that suggest a 'right to relief above a speculative level.'" Tackett v. M&G Polymers,
USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955 (2007)). "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 129
S. Ct. 1937, 1949 (2009). Although the plausibility standard is not equivalent to a
"'probability requirement,' . . . it asks for more than a sheer possibility that a defendant
has acted unlawfully." Id. at 1949 (quoting Twombly, 550 U.S. at 556).
B.

Hamilton County as a Defendant

Defendants make three arguments as to why Hamilton County should be
dismissed as a Defendant, which are: (1) Hamilton County is not sui juris, or capable of
suing or being sued; (2) Hamilton County is not a proper party defendant because
Plaintiff has not alleged a sufficient economic link, and it is not Plaintiff's employer; and

4

(3) Hamilton County has not been properly served within the requisite timeframe. The
Court addresses each of these issues below.
1. Hamilton County's ability to be sued
Defendants argue that Hamilton County should be dismissed as a Defendant
because Hamilton County is not sui juris, and thus, lacks the capacity to sue or be sued.
More specifically, Defendants rely on Section 301.22 of the Ohio Revised Code for the
proposition that the only counties that can be sued directly are those that adopt a
charter or alternative form of government, which Hamilton County has not done.
Plaintiff disputes that contention, relying on Section 301.22 for the proposition that a
county is a body politic and corporate and capable of suing and being sued. Plaintiff
also relies on Section 2744.01(F) of the Ohio Revised Code relating to Political
Subdivision Torts, which includes a "county" in the definition of a "political subdivision."
Although Defendants frame the issue as one of capacity, a close analysis of the
statutory law and the relevant caselaw clarifies that the issue is one of immunity from
suit rather than one of capacity to be sued. See Turner v. City of Toledo, 671 F. Supp.
2d 967, 971-973 (N.D. Ohio 2009) (citing State ex. rel. Ranz v. City of Youngstown, 140
Ohio St. 477, 483, 45 N.E.2d 767 (1942) and Bd. of Comm'rs v. Mighels, 7 Ohio St. 109,
118, 119 (1857)). Under Ohio law, a county is recognized as a "political subdivision" of
the state. O.R.C. § 2744.01(F) (emphasis added); see also O.R.C. § 2743.01(B). See
also Zents v. Bd. of Comm'rs, 9 Ohio St. 3d 204, 205, 459 N.E.2d 881, 885 (1984) ("In
Ohio, a county is not regarded as a body corporate like a municipality but rather a
political subdivision of the state."); Schaffer v. Bd. of Trs., 171 Ohio St. 228, 230, 168
N.E.2d 547 (1960) (stating that a county is "not a body corporate but rather a

5

subordinate political subdivision," and "[a] county is purely a political subdivision, an
agency or instrumentality of the state"). As a political subdivision, a county is provided
certain rights and responsibilities, and it cannot sue or be sued except "as specially
authorized by statute." Stone v. Holzberger, 807 F. Supp. 1325, 1333 (S.D. Ohio 1992),
aff’d, 23 F.3d 408 (6th Cir. Jan. 6, 1994), (citing O.R.C. § 301.22 and Pancake v.
Wakefield, 102 Ohio App. 5, 7 (Athens Cty. 1956)); see also Ohio Rev. Code § 2743.01
(defining "political subdivision" to include a "county" to which the sovereign immunity of
the state attaches).
A waiver of a county's immunity from suit has been "specially authorized" in
various provisions of the Ohio Revised Code. Section 305.12 of the Ohio Revised Code
sets forth one such instance where a slice of a county's immunity is waived. O.R.C. §
305.12. Pursuant to that provision, a board of county commissioners may sue or be
sued in any court. O.R.C. § 305.12. While that provision does not state that the board
of county commissioners is the exclusive avenue by which a county may be sued, it
may be if no other applicable provision authorizes suit against the county. See O.R.C. §
305.12. A second example of where the immunity given to a county has been waived is
set forth in Section 301.22. O.R.C. § 301.22; see also Stack v. Karnes, 750 F. Supp. 2d
892, 894-95 (S.D. Ohio 2010) (recognizing Section 301.22 as providing a "waiver" of
immunity); Turner, 671 F. Supp. 2d at 971 n.2 (same). Under that provision, the state
legislature waived immunity for any county that adopts a charter or alternative form of
government, granting such a county the powers and responsibilities of being a body that
is both corporate and politic, including the power to sue or be sued. O.R.C. § 301.22.
As such, a county that meets the criteria set forth in Section 301.22 may sue or be sued

6

without any further explicit statutory authorization. That provision makes no mention of
those counties that have not adopted a charter or alternative form of government, and
as such, the inference is that those counties remain subject to the general rule that a
political subdivision cannot sue or be sued except as specially authorized by statute.
See Stone, 807 F. Supp. at 1333 (citing O.R.C. § 301.22 and Pancake, 102 Ohio App.
at 7).
Here, Plaintiff has not named the Hamilton County Board of County
Commissioners as a defendant in the Amended Complaint. 1 Plaintiff also makes no
allegations or arguments that Hamilton County has adopted a charter or alternative form
of government, and this Court finds that Hamilton County has not done so. As such,
neither Section 305.12 nor Section 301.22 is applicable. It accordingly is Defendants'
position that Plaintiff cannot sue Hamilton County directly in federal court on any of her
claims because it is not sui juris. This Court, however, finds that the analysis does not
end there. Instead, it is necessary to consider (1) whether the county is immune from
suit under Section 4112.01, et seq., under which Plaintiff brings her state law claims; (2)
whether the county is immune from suit on those state law claims in federal court; and
(3) whether the county is immune from suit on federal law claims brought against it by
Plaintiff in federal court.
The Court begins its analysis with the issue of immunity in relation to Section
4112.01, et. seq. Section 4112.02 makes it an "unlawful discriminatory practice" for
1

While Plaintiff's original complaint named the Hamilton County Board of County Commissioners as a Defendant,
her Amended Complaint does not. Plaintiff's Amended Complaint supersedes the original complaint and is the
legally operative complaint that controls the case from this point forward. Parry v. Mohawk Motors of Mich., Inc.,
236 F.3d 299, 306-07 (6th Cir. 2000), cert. denied, 533 U.S. 951, 121 S. Ct. 2594 (2001) (recognizing that the
amended complaint was the legally operative complaint); Schmauch v. Honda of America Mfg., Inc., 311 F. Supp.
2d 631, 633 (S.D. Ohio 2003) (amended complaint supersedes original complaint and controls the case). As such,
any claims Plaintiff may have asserted in the original complaint against the Hamilton County Board of County
Commissioners are not before the Court at this time.

7

"any employer because of the race, . . . disability, [or] age . . . to discharge without just
cause, to refuse to hire, or otherwise to discriminate against that person with respect to
hire, tenure, terms, conditions, or privileges of employment, or any matter directly or
indirectly related to employment." O.R.C. § 4112.02.

An "employer" is defined to

include "any political subdivision of the state" and "any person acting directly or
indirectly in the interest of the employer." O.R.C. § 4112.01(A)(2). The definition of
"Person" includes "all political subdivisions." O.R.C. § 4112.01(A)(1). In other words, a
political subdivision in this sense is not just a political entity; it also has a separate
identity as an "employer" and a "person." Unlike in other provisions of the Ohio Revised
Code, the plain language of Section 4112.01, et. seq. makes no exceptions for, and
does not distinguish between, different types of political subdivisions or the
representative bodies thereof to which the law is to apply.

Compare O.R.C. §

4112.01(A)(1)-(2) (employer includes "all" and "any" political subdivisions) with O.R.C.
§§ 903, 904 (excluding "county" from the definition of "political subdivision" and defining
it instead as "any body corporate and politic," noting however that a county that adopted
a charter was not included within that definition); O.R.C. §§ 9.82, 9.835 (excluding from
the definition of political subdivision "any body corporate and politic that operates in and
is responsible for a geographic area smaller than the state"); O.R.C. § 9.65 (excluding
"county" from the definition of "political subdivision"); O.R.C. §§ 5709.831, 5713.081
(listing the particular political subdivisions to which the provisions apply).
A related provision is Section 2744.01, et seq. on Political Subdivision Tort
Liability.

In that provision, the legislature statutorily granted political subdivisions

immunity from any damage to persons or property allegedly caused by any act or

8

omission of the subdivision or its employee in connection with a governmental or
proprietary function, but it chose to expressly exempt from that immunity claims for "Civil
actions by an employee . . . against his political subdivision relative to any matter that
arises out of the employment relationship between the employee and the political
subdivision" and "Civil actions by an employee of a political subdivision relative to
wages, hours, conditions, or other terms of his employment." O.R.C. § 2744.09. Those
exemptions have been interpreted to apply to employment discrimination claims brought
under Section 4112.02. Kohler v. City of Wapakoneta, 381 F. Supp. 2d 692, 705 (N.D.
Ohio 2005) (O.R.C. Ch. 2744 immunity did not apply to the employee's allegations of
sexual harassment under O.R.C. 4112.02 against the city, former police chief, mayor,
and safety director because her allegations related to the conditions of her employment
and therefore were exempt from municipal immunity under O.R.C. 2744.09(C)); City of
Whitehall ex rel. v. Ohio Civil Rights Comm'n, 74 Ohio St. 3d 120, 656 N.E.2d 684, 687
(1995) (holding that political subdivision immunity was inapplicable under Sections
2744.09(B)-(C) where the claimant alleged racial and sexual discrimination).

This

statutory provision appears to authorize lawsuits against political subdivisions, including
counties, without the need to rely on Sections 305.12 and 301.22.
Having considered the foregoing, the Court finds that it is plausible that Hamilton
County can be sued directly as an "employer" and/or "person" under Section 4112.01,
et seq. of the Ohio Revised Code. However, the Court does not conclusively resolve
that issue here given that neither party has raised that specific issue of immunity in their
briefings. That lack of resolution on the issue means that the state law claims brought
under Section 4112.01, et seq. against Hamilton County remain pending.

9

Given that the state law claims against Hamilton County remain pending, the
next issue raised by Defendants' argument as to its ability to be sued is whether
Hamilton County may be sued on those state law claims in federal court. To make that
determination, the Court must consider whether Hamilton County is entitled to sovereign
immunity under the Eleventh Amendment. As the Court will explain in more detail
below with respect to the federal law claims, Hamilton County is not entitled to
sovereign immunity under the Eleventh Amendment, and therefore, it may be sued on
the state law claims in federal court.
The Court now will address Hamilton County's amenability to suit in federal court
on Plaintiff's federal law claims. To start, the Court will examine the specific language of
the federal statutes under which Plaintiff brings her claims -- the ADA, Title VII, ADEA
and FMLA. Each of those statutes define "employer" in a similar way. Specifically,
under the ADA, a "covered entity" is prohibited from discriminating "against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment."

42 U.S.C. § 12112(a).

"Covered entity" is defined to include "employers" which term encompasses
"governments" and "political subdivisions." 42 U.S.C. § 12111(2), (5), (7); 42 U.S.C.
2000e. Likewise, employers subject to Title VII include "governments" and "political
subdivisions," and employers subject to the ADEA include "a State or political
subdivision of a State and any agency or instrumentality of a State or a political
subdivision of a State." 42 U.S.C. §§ 2000e, 2000e-2; 29 U.S.C. § 630(b).

The FMLA

sets forth similar definitions, providing that an "employer" who may be civilly liable

10

includes "any 'public agency[,]'" which is defined to include the government of a State or
a political subdivision thereof, a State, or a political subdivision of a State. 29 U.S.C..
§§ 203(x) (defining "public agency"), 2611(4) (defining "employer"), 2617 (providing for
civil enforcement of FMLA). Therefore, on their face, the statutes subject a "political
subdivision," such as a county, to suit.
However, an interrelated question is how a county's ability to sue or be sued
directly under Ohio law affects its amenability to suit in federal court under federal laws.
Recent opinions of district courts in the Sixth Circuit are instructive. Turner, 671 F.
Supp. 2d at 971-73; Stack, 750 F. Supp. 2d at 894-95; Peart v. Seneca Cnty., 808 F.
Supp. 2d 1028, 1034 (N.D. Ohio Aug. 18, 2011); Horen v. Lucas Cnty., No. 3:11-cv1110, 2011 U.S. Dist. LEXIS 117773, at *4 (N.D. Ohio Oct. 12, 2011). In Turner, Stack
and Peart, the district courts addressed this particular question in the context of the
federal civil rights statute, 42 U.S.C. § 1983. Turner, 671 F. Supp. 2d at 971-73; Stack,
750 F. Supp. 2d at 894-95; Peart, 808 F. Supp. 2d at 1034. In each of those cases, the
district courts pointed out that the rationale underpinning a county's ability to be sued
under Ohio law is "'not conceptually distinct from the question of the entity's sovereign
immunity as an arm of the State.'" Stack, 750 F. Supp. 2d at 898 (quoting Turner, 671
F. Supp. 2d at 971); see also Peart, 808 F. Supp. 2d at 1034 (quoting Turner, 671 F.
Supp. 2d at 971).

As such, the Turner, Stack and Peart courts found that "a

governmental entity's status under state law is not conclusive of whether that entity may
be sued under federal law, though state law does provide evidence of whether a given
entity is, in fact, 'the State.'" Turner, 671 F. Supp. 2d at 972; see also Stack, 750 F.
Supp. 2d at 898; Peart, 808 F. Supp. 2d at 1034. Instead, they determined that the

11

relevant question is whether a governmental entity is entitled to sovereign immunity
under the Eleventh Amendment. Turner, 671 F. Supp. 2d at 971-73; Stack, 750 F.
Supp. 2d at 898; Peart, 808 F. Supp. 2d at 1034. Applying the Eleventh Amendment to
the facts of the case, each of the district courts held that an Ohio county, as a political
subdivision, was not an arm of the state, was not entitled to Eleventh Amendment
immunity in federal court, and was precluded from claiming protection from suit in
federal court on grounds of lack of capacity under Section 301.22 of the Ohio Revised
Code. Turner, 671 F. Supp. 2d at 971-73; Stack, 750 F. Supp. 2d at 898; Peart, 808 F.
Supp. 2d at 1034.
The analyses set forth in Turner, Stack and Peart have been extended in at least
one instance to other federal remedial statutes protecting individual rights, such as the
FMLA and the ADA. Horen, 2011 U.S. Dist. LEXIS 117773, at *4 ("There appears to be
no reason why the preemption flowing from § 1983 [as to an Ohio county's ability to sue
or be sued] should not also apply to other federal remedial statutes protecting individual
rights, such as the FMLA, ADA and Rehabilitation Act.").
This Court finds the analysis of those district courts to be correct. It is Eleventh
Amendment immunity that determines whether Hamilton County can be sued under the
federal laws. 2 Under the Eleventh Amendment, a state and its agencies generally are
immune from private lawsuits in federal court by virtue of the Eleventh Amendment,
unless that immunity has been expressly waived. Mt. Healthy City Sch. Dist. Bd. of

2

While the Court notes, as did the district courts in Stack and Turner, that an argument that Section 301.22 is a
capacity issue rather than an immunity issue has some merit, we find, for the same reasons set forth in Stack and
Turner, that the Eleventh Amendment immunity analysis is proper here. Stack, 750 F. Supp. 2d at 898; Turner, 671
F. Supp. 2d at 970-71. A county's ability to be sued is so intertwined with the issue of immunity that to hold
otherwise could limit or preclude a party's ability to bring what would be an otherwise valid claim under the federal
remedial statutes at issue in this case.

12

Educ. v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568 (1977). As such, whether the Eleventh
Amendment bars a suit against claims brought against an entity in federal court turns on
the question of whether the entity is an "arm of the State." Mt. Healthy, 429 U.S. at 280;
Hutsell v. Sayre, 5 F. 3d 996, 999 (6th Cir. 1993). The Court looks to Ohio law for
guidance on whether a county is an "arm of the state." In Section 2743.01(B) of the
Ohio Revised Code, a county is considered a "political subdivision" of the state. O.R.C.
§ 2743.01(B). Ohio courts also have recognized counties as "political subdivisions."
Zents, 9 Ohio St. 3d at 205; Schaffer, 171 Ohio St. at 230; see also Turner, 671 F.
Supp. 2d at 972 ("[T]here is no question that Lucas County, [Ohio] . . . is a 'political
subdivision of the State of Ohio[.]" (citing Ohio Rev. Code § 2743.01(B))). As a political
subdivision, a county is not immune from suit under the Eleventh Amendment. Mt.
Healthy, 429 U.S. at 280 ("The bar of the Eleventh Amendment to suit in federal courts
extends to States and state officials in appropriate circumstances . . . but does not
extend to counties and similar municipal corporations."); S.J. v. Hamilton Cnty., 374
F.3d 416, 420 (6th Cir. 2004) (expressly affirming the "portion of the district court's order
denying immunity to defendant Hamilton County[, Ohio]" with respect to a claim brought
under federal law); Turner, 671 F. Supp. 2d at 972 (finding an Ohio county was not
entitled to Eleventh Amendment immunity for a claim brought under 42 U.S.C. § 1983);
Stack, 750 F. Supp. 2d at 897 (finding "the immunity afforded by the Eleventh
Amendment [to be] inapplicable to Franklin County[, Ohio]"); Horen, 2011 U.S. Dist.
LEXIS 117773, at *4 (county is not entitled to Eleventh Amendment immunity under
federal remedial statutes of ADA, FMLA and Rehabilitation Act). Accordingly, Hamilton
County is not entitled to sovereign immunity under the Eleventh Amendment, and it may

13

be sued in this Court under the ADA, Title VII, ADEA and FMLA regardless of its ability
to sue or be sued under state law.
For the foregoing reasons, the Court decline to dismiss the claims asserted by
Plaintiff in the Amended Complaint against Hamilton County on the basis that Hamilton
County is not sui juris. 3
2. Hamilton County as Plaintiff's "employer"
Given the above analysis, the next question is whether Plaintiff has sufficiently
alleged that Hamilton County was her "employer" under the relevant statutes.
Satterfield v. Tennessee, 295 F.3d 611, 617 (6th Cir. 2002) (recognizing that "Title VII,
the ADEA, and the ADA define 'employer' essentially the same way, [and therefore] an
analysis based on Title VII, the ADEA, and the ADA case law is appropriate [in a Title
VII case]") (citing Wathen v. GE, 115 F.3d 400, 404 n.6 (6th Cir. 1997)); Nelson v.
Clermont Cnty. Veterans' Servs. Comm'n, No. 1:11-cv-335, 2012 U.S. Dist. LEXIS
35230, at *12-18 (S.D. Ohio Mar. 15, 2012) (amended complaint did not plead facts
sufficient to show an actual employment relationship between the employee and the
board of county commissioners, finding as a matter of law that the board did not control
the manner and means of the employee's work and was not her "employer" for
purposes of the ADA, the FMLA, and Ohio Rev. Code Ann. § 4112.01(A)(2)).
Defendants argue that Hamilton County should be dismissed as a Defendant because
(1) there is no economic link between Plaintiff and Hamilton County sufficient to
establish an employment relationship, and (2) Plaintiff made no allegations that
plausibly could suggest that Hamilton County was involved in the decision to terminate
3

While the Court declined to decide the statutory immunity issue under Ohio law with respect to Hamilton County,
the issue of Eleventh Amendment immunity was raised in the briefs and intertwined with the sui juris argument
made by Defendants as to Hamilton County. As such, the Court finds it appropriate to rule on that issue here.

14

Plaintiff. Plaintiff responds that Hamilton County indeed employed him based upon
information received from Hamilton County indicating that Hamilton County's
employment totals include the Juvenile Court and that employees of the divisions of
Hamilton County have one employer – Hamilton County.
Ohio counties are creatures of statute and have only those powers that are
expressly conferred to them by statute, or which are implied by an express power.
Rees v. Olmsted, 135 F.296, 299 (6th Cir. 1905). "To determine whether a particular
defendant is the 'employer' of a plaintiff, the Court of Appeals for the Sixth Circuit has
held that a court must look to whether the alleged employer exercises control over the
manner and means of plaintiff's work." Nelson, 2012 U.S. Dist. LEXIS 345230, at *12
(citing Sutherland v. Mich. Dep't of Treasury, 344 F.3d 603, 611-12 (6th Cir. 2003)).
See Satterfield, 295 F.3d at 617 (observing that "the most important factor" in evaluating
whether an entity is an employer of the plaintiff is "the employer's ability to control job
performance and employment opportunities of the aggrieved individual").
Ohio law vests a board of county commissioners with the authority
to employ a superintendent, and such watchmen, janitors, and other
employees as are necessary for the care and custody of the court
house, jail, and other county buildings, bridges, and other property
under its jurisdiction and control.
O.R.C. § 305.16. Section 305.17 of the Ohio Revised Code provides that the "board of
county commissioners shall fix the compensation of all persons appointed or employed
under [Section] 305.16, inclusive, of the Revised Code, which, with their reasonable
expenses, shall be paid from the county treasury upon the allowance of the board."
O.R.C. § 305.17. At least one Ohio court has specifically interpreted the language of
Section 305.16-.17 to permit the board of county commissioners to hire security guards
15

for the county facilities. Britt v. Franklin Cnty. Comm'rs, 148 Ohio App. 3d 395, 399-400
(Franklin App. 2002). Authority implicit in the statute therefore may include the ability to
fire those security guards, and the ability to control the location, purpose or other
aspects of the security guards' employment. See id.
However, Section 2151.13 of the Ohio Revised Code permits a juvenile judge to
appoint "bailiffs, probation officers, and other employees as are necessary and [to]
designate their titles and fix their duties, compensation, and expense allowances."
O.R.C. § 2151.13. Those employees "shall serve during the pleasure of the judge."
O.R.C. § 2151.13.

Among the employees a juvenile judge may appoint is the

superintendent of a detention facility, who is to serve at the pleasure of the judge.
O.R.C. §§ 2151.13, 2152.42.
With respect to the detention center, it "shall be under the direction of a
superintendent," and the superintendent "shall control, manage, operate, and have
general charge of the facility." O.R.C. § 2152.42(A).

The superintendent of a county

detention facility "shall appoint all employees of the facility" and their salaries are to be
paid in the same manner as the employees of the juvenile court by the county treasurer
as appropriated for the operation of the court. O.R.C. §§ 2151.13, 2152.42(A).
Two district courts in the Sixth Circuit that have construed Sections 2151.13 and
2152.42 specifically have held that employees at county juvenile detention facility serve
at the pleasure of the juvenile judge such that the county is not the responsible
employer. See Lavelle v. Wood Cnty., No. 3:09-cv-2998, 2010 U.S. Dist. LEXIS 62481,
at *4-5 (N.D. Ohio June 23, 2010) (claims brought under ADA, ADEA, Title VII and Ohio
law); Burton v. Hamilton Cnty. Juvenile Court, No. 1:04-cv-00368, 2005 U.S. Dist.

16

LEXIS 39775, at *9 (S.D. Ohio Dec. 5, 2005) (claim for discrimination under Title VII).
In Lavelle, the plaintiff sued Wood County, alleging that it acted as his employer while
he served as a detention officer at the Wood County Juvenile Detention Facility. 2010
U.S. Dist. LEXIS 62481, at *4. Ruling on a motion brought by the defendant under Rule
12(b)(6), the district court found that Wood County was not a proper party to the action,
reasoning:
Juvenile court officials "serve during the pleasure of the judge."
Ohio Rev. Code § 2151.13. The juvenile judge appoints the
superintendent of a county juvenile detention facility, who in turn
appoints the facility's employees. Ohio Rev. Code § 2152.42. The
Ohio Supreme Court has held that officials or employees who serve
at the pleasure of a judge hold their offices as a matter of law rather
than as a matter of contract, and thus have "no vested interest or
private right of property in their offices or employment." Malone v.
Court of Common Pleas of Cuyahoga County, 45 Ohio St. 2d 245,
248, 344 N.E.2d 126 (Ohio 1976) (quoting Fuldauer v. Cleveland, 32
Ohio St. 2d 114, 290 N.E.2d 546 (Ohio 1972).
As a detention officer, Plaintiff served at the pleasure of the
juvenile court judge; therefore, Plaintiff cannot seek relief for her
discharge on the grounds that either Defendant Wood County or
Defendant Wood County Juvenile Court acted as her employer. . . .
[S]ole employment authority over juvenile court employees rests
in the judges of those courts, not in any other county official or entity,
including the county itself.
Id. at *5-6. The Court further held that Plaintiff failed to establish an economic link
between herself and Wood County simply because the compensation for the Wood
County Juvenile Detention Facility and its employees came out of the county treasury.
Id.
Similarly, in Burton, the district court granted summary judgment to the Hamilton
County Board of Commissioners on the plaintiff's employment discrimination claim
under Title VII because there was no evidence it was responsible for hiring or firing a
17

Juvenile Corrections Officer at the Hamilton County Court Youth Center. 2005 U.S.
Dist. LEXIS 39775, at *9. The district court's reasoning was similar to that in Lavelle,
finding that a juvenile corrections officer served at the pleasure of the judges of that
county. Id. at *10. In that case, the district court held it was the juvenile court judges,
and not the board of county commissioners, who were responsible for the termination of
the plaintiff's employment. Id.
Nevertheless, in Chambers v. Hamilton County Job & Family Services, No. 1:08CV-00683, 2009 U.S. Dist. LEXIS 30177, at *5-8 (S.D. Ohio Mar. 24, 2009), the district
court held that an employee of the Hamilton County Prosecutor's Office and the
Hamilton County Job and Family Services department was an employee of Hamilton
County itself under the FMLA. In so holding, the district court was unconcerned that
each office had its own management and the heads of those departments were
separately elected. Id. It looked instead to the FMLA policy manual governing the
Plaintiff's employment, and the department that managed her annual and sick leave and
other benefits, among other things. Id. at *6-7. The district court recognized that under
the FMLA, a "state" or a "political subdivision" is considered a single employer and the
employer of a division of state or political subdivision is the public agency under which it
falls. Id. at *7-8; see also Rollins v. Wilson Cnty. Gov't, 154 F.3d 626, 629 (6th Cir.
1998).

Thus, the district court concluded:

"It defies logic and common sense to

conclude that Plaintiff was not a county employee while working first for HCJFS and
then later for the County Prosecutor. Defendants' argument would separate all county
employees according to department and would deny employees benefits when they

18

transfer from one department to another." Chambers, 2009 U.S. Dist. LEXIS 30177, at
*7.
Here, the Court finds it inappropriate to dismiss Hamilton County at this stage of
the litigation on the basis that it is not Plaintiff's employer. In the Amended Complaint,
Plaintiff alleges that she was a "Security Officer" for the Hamilton County Juvenile
Court's Youth Center. (Doc. 14, ¶¶ 15-21). She further alleges that as a Security
Officer, some of her responsibilities initially included "physically intervening with
residents of the Youth Center who were acting out."

(Doc. 14, ¶ 16).

Her duties

allegedly changed after she requested an accommodation, and she began working as
the Lobby Reception and Security Officer. (Doc. 14, ¶ 21). While she does not specify
in her Amended Complaint who hired her or fired her as a Security Officer or who
controlled her day-to-day employment, she does allege that it was the thenSuperintendent of the Youth Center who placed her on administrative leave in June
2010. (Doc. 14, ¶ 34). In the Answer of Defendants Grady and Bowman, they contend
that Plaintiff was a Juvenile Corrections Officer, and deny that Plaintiff was a Security
Officer. (Doc. 17, ¶¶ 15, 27).
Although this Court recognizes that some of the allegations in the Amended
Complaint suggest that Plaintiff was a juvenile court employee, at this stage of the
litigation the allegations are construed in the light most favorable to Plaintiff and are
accepted as true. In doing so, this Court finds that it is plausible that Plaintiff fell into the
category of security guards who were employed by the board of county commissioners
for the care and custody of the court house, jail, and other county buildings. It also is
unclear which "public agency" could be considered Plaintiff's "employer" for the

19

purposes of the FMLA. Therefore, at this stage of the litigation, there is a sufficient
economic link between Hamilton County and Plaintiff for the claims to proceed.
Accordingly, for the foregoing reasons, the Court finds that Plaintiff has stated a
plausible claim for relief against Hamilton County as her "employer," and the Court
declines to dismiss Hamilton County as a Defendant on this basis.
3. Service on Hamilton County
Defendants' third argument for dismissal of Hamilton County is that Hamilton
County was not served within 120 days of the Complaint, or the Amended Complaint,
being filed with the Court.

Fed. R. Civ. P. 4(c)(1) and (5).

Plaintiff disputes that

contention, arguing that Defendant Hamilton County signed the waiver of service of
summons addressed to Hamilton County on June 3, 2011. Defendants respond that the
waiver was signed on behalf of the "Hamilton County Administration Building," and not
Hamilton County, because Hamilton County is not sui juris and not the proper
defendant.

These arguments raise two issues:

(1) whether Hamilton County was

served; and (2) if Hamilton County was not served, then whether Hamilton County
should be dismissed under Federal Rule of Civil Procedure 4(m) for lack of service
within 120 days after the complaint is filed.
"Due process requires proper service of process in order to obtain in personam
jurisdiction."

Amen v. City of Dearborn, 532 F.2d 554, 557 (6th Cir. 1976).

The

sufficiency of process and service of process are relevant to the Court's exercise of
jurisdiction despite the actual knowledge that Hamilton County has of this adversary
proceeding.

Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991).

Although some courts construe the service requirements for a summons liberally and

20

require only substantial compliance with those requirements if the defendant obtains
actual notice of the lawsuit, the Sixth Circuit has required that a plaintiff strictly comply
with the applicable service requirements despite any actual notice the defendants have
of the litigation. See Friedman, 929 F.2d at 1156 ("Due to the integral relationship
between service of process and due process requirements, we find that the district court
erred in its determination that actual knowledge of the action cured a technically
defective service of process. . . . In short, the requirement of proper service of process
is not some mindless technicality.") (internal citations omitted).
Although Federal Rule of Civil Procedure 4 is a flexible rule, "which principally
requires sufficient notice to the party of claims brought against it" and "a defendant's
answer and appearance in an action should be enough to prevent any technical error in
form from invalidating the process[,]” Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir.
1987) (internal citations omitted), Hamilton County has not filed an answer or appeared
in this adversary proceeding on its own behalf. Rather, a waiver directed to Hamilton
County was returned on behalf of the Hamilton County Administration Building only, and
all of the pleadings filed by Defendants have indicated that Hamilton County has not
appeared or been properly served in this case. There is no evidence that any other
type of service of the summons and complaint has been perfected on Hamilton County.
While recognizing that Hamilton County is undoubtedly aware of this lawsuit, the Court
finds that Plaintiff must address any insufficiencies in the service of process.
The need for Plaintiff to correct the deficiencies in process and service of process
raises the issue of whether Plaintiff doing so at this stage of the litigation would be

21

timely. Federal Rule of Civil Procedure 4(m) governs the time limit for service of a
complaint and summons, providing:
If a defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). As previously discussed, there appear to be insufficiencies in
Plaintiff's service of Hamilton County, and at the time Defendants filed the Motion to
Dismiss at issue here, the time limit for service imposed by Rule 4(m) had passed. If
Plaintiff were to demonstrate good cause for her failure, the Court would be required to
extend the time for service. See Fed. R. Civ. P. 4(m). Plaintiff, however, has not
attempted to demonstrate good cause for her failure to serve Hamilton County, instead
arguing only that Hamilton County was indeed served with a waiver, which was returned
signed. As such, the Court has the discretion to dismiss this adversary proceeding
without prejudice pursuant to Rule 4(m).
However, Rule 4(m) also permits a Court to order that service be made within a
specified time, even where good cause has not been demonstrated. Fed. R. Civ. P.
4(m); see also Henderson v. United States, 517 U.S. 654, 662-63, 116 S. Ct. 1638
(1996); Johnson v. Hayden, No. 99-3959, 2000 U.S. App. LEXIS 22255, at *10 n. 3 (6th
Cir. Aug. 24, 2000). Here, the Court finds that under the circumstances of the case an
extension is justified. Gottfried, 818 F.2d at 493 ("[D]ismissal is not appropriate unless
the party has been prejudiced."); see also Stafford v. Franklin Cnty., Ohio, No. 2:04-cv178, 2005 U.S. Dist. LEXIS 12740, at *3 (S.D. Ohio June 28, 2005) (holding that, when
deciding whether to exercise its discretion under Rule 4(m), it was necessary to
22

consider considering whether an extension of time would prejudice defendant). At the
outset of this lawsuit, Plaintiff requested a waiver of service from Hamilton County,
addressing it to the county's Administration Building.

That waiver of service was

returned, but it was signed on behalf of the Hamilton County Administrative Building,
which Defendants argue was not service on Hamilton County itself. Plaintiff also served
Hamilton County’s Board of County Commissioners, for whom a signed waiver was
returned.

Although Plaintiff dropped the Board of County Commissioners from her

Amended Complaint, the Board of County Commissioners would have received
electronic notice of the Amended Complaint through the Court's electronic filing system.
Although the foregoing may not demonstrate actual service on Hamilton County, it
demonstrates Hamilton County has had knowledge of this lawsuit from the outset.
Moreover, Hamilton County's interests have been represented in this lawsuit to date, as
Defendants have argued in the Motion to Dismiss that is addressed in this Opinion and
Order that Hamilton County is not sui juris and is not a proper party to this lawsuit. In
considering the Motion to Dismiss, this Court now has determined that Hamilton County
is capable of being sued in this case and is a proper party to this lawsuit. See Fed. R.
Civ. P. 4(j) (proscribing methods for service on a state or local government "that is
subject to suit" (emphasis added)). Further, Defendants have not suggested that any
prejudice will result from an extension of service time, other than the inherent prejudice
of having to defend in this suit. Finally, it is important to note that by exercising its
discretion to permit an extension of time to effectuate service, this Court is acting
consistently with the Sixth Circuit's "preference for deciding cases on the merits."
Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir. 2003); see also Stafford, 2005

23

U.S. Dist. LEXIS 12740, at *10 (noting that "disputes should be resolved on their merits
rather than procedural or technical grounds").
Accordingly, the Court will provide Plaintiff with 20 days after the entry of this
Opinion and Order to properly serve the summons and Amended Complaint on
Hamilton County in accordance with Rules 4 and 5 of the Federal Rules of Civil
Procedure.
C.

Eleventh Amendment Immunity

Defendants raise several arguments as to Eleventh Amendment immunity. As
stated above, a state and its agencies are generally immune from private lawsuits in
federal court by virtue of the Eleventh Amendment, unless that immunity has been
expressly waived. Mt. Healthy, 429 U.S. at 280. Where an officer of a state or its
agencies is sued in his or her official capacity, the suit is equivalent to a suit against that
state or its agency that the officer represents. Kentucky v. Graham, 473 U.S. 159, 16566, 105 S. Ct. 3099 (1985) (citing Monell v. New York City Dep’t of Soc. Servs., 436
U.S. 658, 690 n. 55, 98 S. Ct. 2018 (1978)); Johnson v. Dellatifa, 357 F.3d 539, 545
(6th Cir. 2004). "The only immunities that can be claimed in an official-capacity action
are forms of sovereign immunity that the entity, qua entity, may possess, such as the
Eleventh Amendment."

Graham, 473 U.S. at 167.

The burden to prove Eleventh

Amendment immunity rests with the party asserting it and who would benefit from its
acceptance. Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir.
2002).
Application of the Eleventh Amendment as a bar to claims brought in federal
court frequently turns on the question of whether the institution or an officer sued in his

24

official capacity is an arm of the state. Mt. Healthy, 429 U.S. at 280; Hutsell, 5 F.3d at
999. The Sixth Circuit employs a multi-factor test to determine whether such an entity
or officer is an arm of the state. Ernst v. Rising, 427 F.3d 351, 359-60, 364-65 (6th Cir.
2005) (en banc). These factors include: (1) the state's obligation to pay any judgment
that would accrue against the entity; (2) how the state's statutes and courts have
referred to the entity and the degree of control the state has over the entity; (3) whether
state or local officials appoint the entity's board members; and (4) whether the entity's
functions are akin to traditional state or local functions. Id.; see also S.J., 374 F.3d at
420.
Where the Eleventh Amendment is applicable, a federal court cannot grant
prospective or retroactive relief against a state or nominally against its officials on the
basis of state law. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Pennhurst
State Sch. & Hosp. & Halderman, 465 U.S. 89, 106 (1984); O’Hara v. Wigginton, 24
F.3d 823, 826 (6th Cir. 1994).

A federal court also is precluded from awarding

compensatory or retrospective relief against a state or its officials on the basis of federal
law. Papasan v. Allain, 478 U.S. 265, 281, 106 S. Ct. 2932 (1986); Edelman v. Jordan,
415 U.S. 651, 669, 94 S. Ct. 1347 (1974). It may, however, issue declaratory or
injunctive relief that is properly characterized as "prospective" to compel state officials to
comply with federal law, regardless of whether compliance may have an ancillary effect
on the state treasury. Will, 491 U.S. at 71 & n. 10; see also Edelman, 415 U.S. at 66465; Dubuc v. Mich. Bd. of Law Examiners, 342 F.3d 610, 616 (6th Cir. 2003) (quoting
Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)).
1. State Law Claims Against Judge Grady in Official Capacity
Representing the Hamilton County Juvenile Court
25

Plaintiff sues Judge Grady as a representative of the Hamilton County Juvenile
Court. Defendant contends that in her official capacity, Judge Grady qualifies as an arm
of the state entitled to sovereign immunity because both the Court of Common Pleas
and the Juvenile Court have been held to be arms of the state.

We agree with

Defendants on this issue.
In Mumford v. Basinski, 105 F.3d 264, 269 (6th Cir. 1997), the Sixth Circuit held
that an Ohio Court of Common Pleas is an arm of the State of Ohio and entitled to
Eleventh Amendment immunity. Its subsequent decision in Alkire v. Irving, 330 F.3d
802, 811-13 (6th Cir. 2003) did not overrule Mumford. See S.J. v. Hamilton Cnty., 374
F.3d 416, 421 (6th Cir. 2004); Triplett v. Connor, 109 Fed. App'x 94, 96 n.4 (6th Cir.
2004).

Moreover, the Sixth Circuit has, on at least two occasions since Alkire,

reaffirmed the holding in Mumford. Triplett, 109 Fed. App'x at 96; Meyers v. Franklin
Cnty. Court of Common Pleas, 81 Fed. App'x 49, 55 (6th Cir. 2003); see also Tanner v.
Muskingum Cnty. Court of Common Pleas, No. 2:07-cv-711, 2008 U.S. Dist. LEXIS
1538, at *2-3 (S.D. Ohio Jan. 9, 2008); Howard v. Supreme Court, No. 2:07-cv-0514,
2007 U.S. Dist. LEXIS 79354, at *4 (S.D. Ohio Oct. 25, 2007), adopted in its entirety at,
2008 U.S. Dist. LEXIS 6437 (S.D. Ohio Jan. 14, 2008).
Nevertheless, whether the Ohio Court of Common Pleas is an arm of the state
does not conclusively resolve the issue, as we must now determine whether the
Juvenile Court also is an arm of the state. In an opinion issued by the Sixth Circuit
following its decision in Alkire, it held that under "the Eleventh Amendment, the Juvenile
Court is considered an arm of the state." Meyers, 81 Fed. App'x at 55. Although
lacking binding precedent as an unpublished opinion, Meyers is instructive here.

26

Moreover, the Sixth Circuit later issued a published decision in which it strongly
suggested that a juvenile court should be considered an arm of the state. See S.J., 374
F.3d at 421-22. In S.J., the Sixth Circuit was asked to determine whether a juvenile
detention center, Hillcrest, was an arm of the state. Id. Although its holding was related
solely to its determination on that issue, it stated the following with respect to the
Juvenile Court's status as an arm of the state:
To the extent that considerations of dignity are relevant in
determining whether an entity is protected by state sovereign
immunity, one would expect this factor to weigh heavily in a suit
against a state court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78-79, 82 L. Ed. 1188, 58 S. Ct. 817 (1938) ("The constitution of the
United States . . . recognizes and preserves the autonomy and
independence of the states . . . in their judicial departments."). Such
courts are the "adjudicative voice" of the state itself. Harris [v.
Missouri Court of Appeals], 787 F.2d [427,] 429 [(8th Cir. 1986)].
That is particularly true in the context of a court system that, like
Ohio's, is mandated by the state constitution to be uniform and to be
supervised by one supreme court. Ohio Const. art. IV, § 5; Foster [v.
Walsh], 864 F.2d [416,] 418 [(6th Cir. 1988)]. While lower state
courts may sometimes be funded by the counties where they sit,
separation of powers concerns frequently preclude counties and
other branches of government from denying reasonable funding for
the operation of the courts. See, e.g., Ohio Rev. Code § 307.01(B);
State ex rel. Weaver v. Lake County Bd. of Comm'rs, 62 Ohio St. 3d
204, 580 N.E.2d 1090, 1092 (Ohio 1991); Mumford, 105 F.3d at 269;
cf. Tennessee v. Lane, 158 L. Ed. 2d 820, 124 S. Ct. 1978, 1991
n.16 (2004) (observing that "the provision of judicial services" is "an
area in which local governments are typically treated as arms of the
state for Eleventh Amendment purposes.") (punctuation omitted).
Id.
In the present case, this Court will follow the guidance from the Sixth Circuit in
Meyers and S.J. The Court finds the reasoning in those cases to be both correct and
applicable, particularly in the case of Hamilton County where the juvenile court is closely
tied in with the court of common pleas given that the judges of the court of common
pleas exercise the powers and jurisdictions of the juvenile court. O.R.C. § 2151.08. As
27

such, and given that there is no evidence that the State of Ohio has waived its immunity
to be sued in federal court under state law, the Court finds that the Hamilton County
Juvenile Court itself is an arm of the state. Judge Grady, as sued in her official capacity
representing the Hamilton County Juvenile Court, is therefore entitled to sovereign
immunity under the Eleventh Amendment. As such, this Court lacks the authority to
grant any type of prospective or retroactive relief against Judge Grady on the basis of
state law. Pennhurst, 465 U.S. at 106; O’Hara, 24 F.3d at 826. Accordingly, Plaintiff's
state law claims set forth in Counts III, V and VII against Judge Grady in her official
capacity representing the Hamilton County Juvenile Court are dismissed in their
entirety.
2. State Law Claims Against Superintendent Bowman in Official
Capacity Representing the Youth Center
We now turn to the analysis as to Superintendent Bowman in his official
capacity representing the Hamilton County Juvenile Court's Youth Center. Defendants
contend that official-capacity suits against the Youth Center are barred by the Eleventh
Amendment because the Youth Center is an arm of the state, as it is so connected to
the Hamilton County Juvenile Court under Ohio law. Plaintiff disputes that contention.
As it is not clear that the Youth Center should be considered an arm of the state, the
analysis of the issue requires a consideration of the factors generally relied upon by the
Sixth Circuit in determining whether an entity is an arm of the state.
a. State's Obligation to Pay Judgment
Superintendent Bowman has not set forth any argument specific to this factor.
Rather, he argues that the Youth Center is an arm of the state because it is connected
to the Juvenile Court and that because it is an arm of the state, it is logical that the state
28

would pay a money judgment. In support, he cites to a prior opinion of this Court in S.L.
v. Peirce Twp. Bd. of Trs., No. 1:07-cv-986, 2009 U.S. Dist. LEXIS 31367, at *23 (S.D.
Ohio. Mar. 26, 2009), which reasoned that if the juvenile detention center was "part of
the juvenile court th[e]n the logical conclusion is that the state would pay any judgment
but if it is part of the county then the county would likely pay the judgment." Notably, in
that case this Court held that it could not determine on the motion to dismiss who would
be responsible for a judgment against the juvenile detention center, even though that
defendant had cited sections of the Ohio Revised Code regarding insurance held by the
state to insure the judge who was sued in his official capacity as an representative of
the detention center. Id.
Here, Superintendent Bowman relies on the statutory scheme to support his
contention that the Hamilton County Youth Center is the Hamilton County Juvenile
Court. However, the Sixth Circuit has recognized that which entity will pay a money
judgment is the most important factor in the arm-of-the-state analysis. Although the
statutory scheme provides a connection between the Youth Center and the juvenile
court, which the Court concluded above is an arm of the state, it does not conclusively
establish which entity – the state or the county – would pay a money judgment against
the Youth Center. Moreover, Superintendent Bowman has not demonstrated that the
same reasoning applicable to the juvenile court is or should be applicable to the Youth
Center.

This Court therefore lacks sufficient information upon which to base a

determination at this stage of the litigation that the State of Ohio would be responsible
for a judgment against the Youth Center.

As it would be premature to make this

determination without any argument or evidence specifically directed towards this issue,

29

the Court concludes that Superintendent Bowman has failed to meet his burden on this
factor at this time.
b. How the State's Statutes and Courts have Referred to the Entity
and the Degree of Control the State Has Over the Entity
Section 2152.41(A) of the Ohio Revised Code states: "Upon the recommendation
of the judge, the board of county commissioners shall provide, by purchase, lease,
construction or otherwise, a detention facility that shall be within a convenient distance
of the juvenile court." O.R.C. § 2152.41(A). In addition, Section 2152.42(A) provides
that "Any detention facility established under section 2152.41 of the Revised Code shall
be under the direction of a superintendent. The superintendent shall be appointed by,
and under the direction of, the judge or judges . . . The superintendent serves at the
pleasure of the juvenile court . . . ." O.R.C. § 2152.42(A). Based on the foregoing, the
State statutes provides for a connection between a juvenile detention facility and the
juvenile court, which is part of the common pleas court. Since the common pleas court
and the juvenile court are part of the state judicial system, the statutory consideration
weighs in favor of sovereign immunity of the Youth Center.
Now the Court turns to how the courts have referred to juvenile detention
centers. In Oswald v. Lucas County, No. 99-3771, 2000 U.S. App. LEXIS 27990, at *5
(6th Cir. Oct. 30, 2000), the Sixth Circuit held that a "juvenile detention center" defined
under what is now Section 2151.41 of the Ohio Revised Code (formerly Section
2151.34) was "part of the juvenile court which is an arm of the state" and therefore was
entitled to sovereign immunity. Following that opinion, the Sixth Circuit rendered its
decision in S.J., 374 F.3d at 422. In S.J., the Sixth Circuit pointed out that Oswald is an
unpublished decision that lacks binding precedential value, but it simultaneously noted
30

that the language in Section 2151.41 that provides the county "shall" create the
detention facility upon the recommendation of the juvenile court is a factor that
distinguishes a detention center from other similar facilities of the county. S.J., 374 F.3d
at 422. A few months later, the Sixth Circuit issued its opinion in Nixon v. BelmontHarrison Juvenile Dist., 113 Fed. App'x 51, 54-55 (6th Cir. 2004). In that opinion, the
Sixth Circuit considered whether a multi-county juvenile detention facility was an arm of
the state. Id. In considering the issue, the Sixth Circuit pointed out that there are
multiple factors to consider in determining whether an entity is an arm of the state. Id.
at 54. It noted, however, that the record from the district court contained no information
on those factors and that the "unpublished opinion in Oswald" upon which the district
court relied without any discussion involved a single-county facility rather than a multidistrict facility that was at issue in that case. Id. Therefore, the Sixth Circuit determined
that the record before it was insufficient to permit it to review the district court's Eleventh
Amendment immunity decision. Id. at 54-55. Since the burden was on the defendant to
raise the issue and it did not do so, the Sixth Circuit concluded that the issue need not
be considered further and it went on to consider the merits of the plaintiff's claims. Id. at
55.
As for the district courts, at least two in the Sixth Circuit (this Court included)
have declined to dismiss a case based on a juvenile detention center's Eleventh
Amendment immunity, holding that further discovery was necessary to make that
determination. Sanford v. Cnty. of Lucas, No. 3:07-cv-3588, 2009 U.S. Dist. LEXIS
20774, at *11 (N.D. Ohio Mar. 16, 2009); S.L., 2009 U.S. Dist. LEXIS 31367, at *23-26.

31

Nevertheless, in S.L., this Court determined that this particular factor weighed in favor of
sovereign immunity. 2009 U.S. Dist. LEXIS 31367, at *24.
Having considered the foregoing, this Court concludes that this factor weighs in
favor of sovereign immunity for the Youth Center.
c. Whether State or Local Officials Appoint the Board Members
Under the Ohio Revised Code, a single-county detention center such as the
Youth Center does not have its own board. See O.R.C. § 2152.41(A)-(B). Rather, it is
the board of county commissioners who, upon recommendation of the judge, "shall
provide, by purchase, lease, construction, or otherwise, a detention facility." O.R.C. §
2152.41(A). It also is the county that is responsible for paying the expenses incurred in
maintaining the facility, although it may request assistance from the department of youth
services. O.R.C. §§ 2152.42(B), 2152.43(A), 5139.281.
The Ohio Revised Code also provides that the juvenile judge appoints the
superintendent of the detention center, that the superintendent shall be under the
direction of the juvenile judge, and that the superintendent shall serve at the pleasure of
the juvenile court. O.R.C. § 2152.42(A). The superintendent is then responsible for
appointing the employees of the facility whose salaries are provided for in Sections
2151.13 and 2152.42(B) of the Ohio Revised Code. O.R.C. §§ 2151.13, 2152.42(A)(B).
In light of the above, this factor is weighs in favor of sovereign immunity for the
Youth Center.
d. Whether the Entity's Functions are Akin to Traditional State or
Local Functions

32

This factor is evenly balanced at this stage of the litigation. The county, city and
state all operate detention facilities. Although the county juvenile detention centers are
provided for by state laws, those centers serve the local community and are paid for by
the local governments. However, they also provide a benefit to the public at large and
allow for the judicial system to operate effectively. Considering the above, this Court
finds at this stage of the litigation that the operation of the Youth Center is equally akin
to a state and local function.
e. Summary Conclusion
Given the inconclusiveness of the evidence currently before the Court, a final
determination on whether to extend Eleventh Amendment immunity to the Youth Center
cannot be made. Therefore, the Court declines to dismiss Plaintiff's state law claims set
forth in Counts III, V and VII against Superintendent Bowman in his official capacity
representing the Youth Center at this stage of the litigation.
3. FMLA claims
"The clarity of Congress's intent to abrogate state sovereign immunity with regard
to the provisions of the FMLA is 'not fairly debatable.'" Touvell v. Ohio Dep't of Mental
Retardation & Developmental Disabilities, 422 F.3d 392, 395 (6th Cir. 2005) (quoting
Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 728, 123 S. Ct. 1972 (2003)). "The
Act enables employees to seek damages 'against any employer (including a public
agency) in any Federal or State court of competent jurisdiction,' 29 U.S.C. § 2617(a)(2),
and Congress defined 'public agency' to include both "the government of a State or
political subdivision thereof" and 'any agency of . . . a State, or a political subdivision of
a State,' §§ 203(x), 2611(4)(A)(iii)." Id. at 395-96. However, the abrogation of state's

33

sovereign immunity has been found to extend only to the family-care provision of the
FMLA, Section 2612(a)(1)(C); it has not been extended to the self-care provision of the
FMLA, Section 2612(a)(1)(D). Coleman v. Court of Appeals of Md., _ U.S. _, 132 S. Ct.
1327, 1333-34, 1388 (2012) (holding that although the family-care provision under §
2612(a)(1)(C) is enforceable against the states based on a valid abrogation of sovereign
immunity, the self-care provision of the FMLA, § 2612(a)(1)(D), is not); see also Touvell,
422 F.3d at 397-400 (citing Hibbs, 538 U.S. at 728; Brockman v. Wyo. Dep't of Family
Servs., 342 F.3d 1159 (10th Cir. 2003), cert. denied, 540 U.S. 1219, 124 S. Ct. 1509
(2004)). In other words, a plaintiff may maintain an action against the State under the
family-care provision of Section 2612(a)(1)(C) but may not maintain a private action
against the State under the self-care provision of Section 2612(a)(1)(D) except to the
extent she seeks prospective injunctive relief as permitted by Ex parte Young, 209 U.S.
123 (1908).

Coleman, 132 S. Ct. at 1350 (dissent noted that such prospective

injunctive relief was still available); see also Touvell, 422 F.3d at 397-400; Dubuc, 342
F.3d at 616 (citing Verizon Md., Inc., 535 U.S. at 645).
As the Court already has analyzed the "arm of the state" issues with respect to
each of the Defendants, that analysis is incorporated here. In light of that analysis, the
Court concludes that Plaintiff may maintain an action under the family-care provision
against all Defendants, regardless of whether they are arms of the state. As such, the
Court will not dismiss Plaintiff's claims under Section 2612(a)(1)(C) against any
Defendants.
With respect to the self-care provision, the Court concludes that Plaintiff may
maintain an action against those Defendants that are not arms of the state, but may

34

maintain only an action for prospective relief against those Defendants that are deemed
arms of the state. As such, the Court concludes as to the claims brought under the selfcare provision in Section 2612(a)(1)(D) that (1) as to Hamilton County, the claim will not
be dismissed, as Hamilton County is not an arm of the state; (2) as to Superintendent
Bowman in his official capacity representing the Youth Center, the claim will not be
dismissed at this stage of the litigation because the final resolution of that issue
depends on whether the Youth Center is found to be an arm of the state; and (3) as to
Judge Grady in her official capacity representing the Hamilton County Juvenile Court,
the claim will be dismissed to the extent she seeks retroactive and compensatory
damages but will not be dismissed with respect to her request for proper prospective
relief.
In the instant case, the relief that Plaintiff seeks includes: that Defendants be
enjoined from further unlawful conduct as described in the Complaint, reinstatement,
compensatory damages including emotional distress damages, all lost pay and benefits,
front pay, punitive damages, liquidated damages, pre-judgment interest, reasonable
attorney' fees, compensation for adverse tax consequences of receiving a lump sum
award rather than her compensation over several, separate tax years, and other legal
and equitable relief.

(Doc. 14, p. 9).

With the exception of the injunctive relief

prohibiting further unlawful conduct and prospective reinstatement, all of the relief
sought is retroactive or would involve payments from the state treasury that do not arise
from future compliance with the law. 4

Therefore, the only prospective remedies

4

See, e.g., Carten v. Kent State Univ., 282 F.3d 391, 395 (6th Cir.2002) (prospective reinstatement
permitted as recovery against state official); Freeman v. Mich. Dep't of State, 808 F.2d 1174, 1179 (6th
Cir. 1987) (holding that back pay, front pay, and fringe benefits are barred in an Ex parte Young claim, but
an injunction against future unlawful activity is not); Thomson v. Harmony, 65 F.3d 1314 (6th Cir. 1995)

35

available against a defendant deemed an arm of the state are prospective injunctive
relief and prospective reinstatement.
4. ADEA claims
Under the ADEA, the term "employer" is defined to include "a State or political
subdivision of a State and any agency or instrumentality of a State or a political
subdivision of a State." 42 U.S.C. §§ 2000e, 2000e-2; 29 U.S.C. § 630(b). However,
despite the fact that the ADEA applies to state governments, the Supreme Court has
held that state employees could not sue states for monetary damages under the ADEA.
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000),

The Supreme Court reasoned

that states have sovereign immunity unless the state consents or another exception
applies. Id. Sovereign immunity, however, does not preclude private suits against state
officers for prospective injunctive relief or declaratory relief. Id. See also Quern v.
Jordan, 440 U.S. 332, 337, 99 S. Ct. 1139, (1979); Edelman, 415 U.S. 651.
As with the FMLA claims, the ability of Plaintiff to maintain this claim against
Defendants turns on whether they are arms of the state. Again, the Court incorporates
its prior analysis here.

Accordingly, the Court concludes that: (1) as to Hamilton

County, Plaintiff's claim under the ADEA will not be dismissed, as Hamilton County is
not an arm of the state; (2) as to Superintendent Bowman in his official capacity as a
representative of the Hamilton County Juvenile Court's Youth Center, Plaintiff's claim
under the ADEA will not be dismissed at this stage of the litigation, as the final

(Ex parte Young remedies for wrongfully terminated student include prospective reinstatement, future
support, and expungement of record but not retroactive remedies); Yates-Mattingly v. Univ. of Cincinnati,
No. 1:11-cv-753, 2012 U.S. Dist. LEXIS 124101, at *8-9 (S.D. Ohio Aug. 31, 2012) (lost pay, benefits,
front pay, compensatory damages, liquidated damages, punitive damages, attorneys' fees and costs,
prejudgment interest and compensation for adverse tax consequences barred in official-capacity claim);
Galli v. Morelli, No. 01cv1056, 2003 U.S. Dist. LEXIS 15138 at *5 (S.D. Ohio Aug. 15, 2003) (back pay
and front pay are barred in an official-capacity claim).

36

resolution depends on whether the Youth Center is found to be an arm of the state; and
(3) as to Judge Grady in her official capacity representing the Hamilton County Juvenile
Court, Plaintiff's claim under the ADEA for monetary or retroactive relief is dismissed,
but her claim under the ADEA for prospective relief will not be dismissed. 5
5. ADA claims
Plaintiff alleges she was terminated in violation of Title I of the ADA.

The

Supreme Court has held that the Eleventh Amendment bars federal employment
discrimination suits against a state under Title I of the ADA. Bd. of Trs. v. Garrett, 531
U.S. 356, 374, 121 S. Ct. 955 (2001); Whitfield v. Tennessee, 639 F.3d 253, 257 (6th
Cir. 2011). However, a plaintiff may seek prospective relief against government officials
under Title I. Whitfield, 639 F.3d at 257.
As with the FMLA and ADEA claims, the ability of Plaintiff to maintain this claim
against Defendants turns on whether they are arms of the state, and the prior analysis
on this issue is incorporated here. Based on that prior analysis, this Court concludes
that: (1) as to Hamilton County, Plaintiff's claim under the Title I of the ADA remains
pending, as Hamilton County is not an arm of the state; (2) as to Superintendent
Bowman in his official capacity as a representative of the Youth Center, Plaintiff's claim
under Title I of the ADA remains pending at this stage of the litigation, with the final
resolution depending on whether the Youth Center is found to be an arm of the state;
and (3) as to Judge Grady in her official capacity representing the Hamilton County
Juvenile Court, Plaintiff's claim under Title I of the ADA for monetary or retroactive relief
is dismissed, but her claim under Title I of the ADA for prospective relief remains
pending.
5

For an analysis of the prospective relief that is available, see the analysis above on pages 34-35.

37

d. Title VII
The Eleventh Amendment does not bar a federal court action against a state
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Fitzpatrick v.
Bitzer, 427 U.S. 445, 451-56 (1976) (finding that Congress abrogated the states'
sovereign immunity by enacting Title VII); Johnson v. Univ. of Cincinnati, 215 F.3d 561,
571 (6th Cir. 2000) (allowing Title VII claims against state university to go forward
notwithstanding the Eleventh Amendment). As such, Defendants do not seek dismissal
of the Title VII claims on this basis. Rather, Defendants seek to dismiss the Title VII
claims against them on the basis of the "personal staff" exemption set forth in 42 U.S.C.
§ 2000e(f).
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual" based on his or her
inclusion in a protected class. 42 U.S.C. § 2000e-2(a)(1). Courts have limited Title VII's
protections to individuals who are "employees." See Birch v. Cuyahoga Cnty. Probate
Court, 392 F.3d 151, 157 (6th Cir. 2004) (explaining that Title VII's protections apply
only to those who are "employees") (citing Llampallas v. Mini-Circuits, Inc., 163 F.3d
1236, 1242 (11th Cir. 1998)). Section 2000(e)(f) sets forth the parameters for who may
be considered an employee for the purposes of bringing a discrimination claim under
Title VII. 42 U.S.C. § 2000e(f); see also Birch, 392 F.3d at 157. It provides, in pertinent
part:
The term "employee" means an individual employed by an employer,
except that the term "employee" shall not include any person elected
to public office in any State or political subdivision of any State by the
qualified voters thereof, or any person chosen by such officer to be
on such officer's personal staff, or an appointee on the policy making
level or an immediate adviser with respect to the exercise of the
38

constitutional or legal powers of the office. The exemption set forth in
the preceding sentence shall not include employees subject to the
civil service laws of a State government, governmental agency or
political subdivision.
42 U.S.C. § 2000e(f) (emphasis added).
The Sixth Circuit has set forth six non-exhaustive factors to be considered in
determining whether a government employee is subject to the "personal staff"
exemption, which are:
"(1) whether the elected official has plenary powers of appointment
and removal, (2) whether the person in the position at issue is
personally accountable to only that elected official, (3) whether the
person in the position at issue represents the elected official in the
eyes of the public, (4) whether the elected official exercises a
considerable amount of control over the position, (5) the level of the
position within the organization's chain of command, and (6) the
actual intimacy of the working relationship between the elected
official and the person filling the position."
Birch, 392 F.3d at 158 (quoting Walton v. Mich., 918 F.2d 958 (6th Cir. 1990) (internal
quotations omitted)).

According to the Sixth Circuit, the "'personal staff' exception

becomes less applicable the lower the particular employee's position because the
exception was primarily intended to exempt the elected official's immediate
subordinates or those who are his first line advisors.'"

Id. (quoting Montgomery v.

Brookshire, 34 F.3d 291, 296 (5th Cir. 1994) (internal quotation marks and citations
omitted)). Moreover, the "exemption is to be construed narrowly and involves a highly
factual inquiry[.]" Id. (citing Teneyuca v. Bexar County, 767 F.2d 148, 152 (5th Cir.
1985)).
At this stage of the litigation, the Court cannot determine as a matter of law that
Plaintiff is subject to the "personal staff" exemption. Defendants contend that Plaintiff
served as a member of the juvenile court judge's "personal staff," but an evaluation of
39

each of the six factors articulated in Birch is not conclusive on the issue. Although the
juvenile court judge has the power to employ various individuals under Ohio law, see
O.R.C. § 2151.13, it is not clear that Plaintiff was accountable to the juvenile court judge
exclusively. As an initial matter, the facts alleged by Plaintiff create ambiguity as to
Plaintiff's exact position, and thus, to the issue of who employed her. If she was a
juvenile court employee, then Section 2152.42(A) of the Ohio Revised Code indicates
that she would have been appointed by the superintendent, who was appointed by the
juvenile court judge and who serves at the pleasure of the juvenile court. O.R.C. §
2152.42(A)-(B). The Ohio Revised Code further provides that the superintendent "shall
control, manage, operate, and have general charge of the facility."

O.R.C. §

2152.42(A). It therefore is plausible that Plaintiff would be accountable to individuals
other than the juvenile court judge, and that individuals other than the juvenile court
judge would have considerable control over Plaintiff's position. Moreover, there is no
indication in the statutory scheme that Plaintiff would on any occasion have direct
contact or a direct working relationship with the juvenile court judge.

Rather, the

structure set forth above would make a person in the position of a juvenile court
employee at least one step removed from the juvenile court judge. As that position
would therefore be beyond the "first line of advisors" of the juvenile court judge, the
exception becomes less applicable.

Finally, there is no argument made here that

demonstrates conclusively whether a person in Plaintiff's position represents the
juvenile court judge in the eyes of the public. The only argument made by Defendants
is that the district court in Lavelle, 2010 U.S. Dist. LEXIS 62481, concluded that
because a juvenile detention officer at a county juvenile detention facility served at the

40

pleasure of the juvenile judge, he had the sort of personal accountability to the judge
that would qualify him as a member of the judge's "personal staff." Lavelle is nonbinding precedent on this Court, and its decision was rendered without analysis of any
of the factors described in Birch. When those factors are closely examined (as this
Court did above), it is apparent that more evidence is necessary before a conclusive
determination can be made.
Accordingly, this Court declines to dismiss Plaintiff's Title VII claims on the basis
of the "personal staff" exemption in Section 2000e(f).
E.

Punitive and Emotional Distress Damages

Defendants argue that Plaintiff is not entitled to any punitive or emotional distress
damages. Although Plaintiff makes no opposing argument, the Court will nevertheless
address the merits of Defendants' arguments here.
Where claims are barred by the Eleventh Amendment, the plaintiff is not entitled
to monetary damages. See Gies v. Flack, 495 F. Supp. 2d 854, 861 (S.D. Ohio 2004).
"Monetary damages" include, among other things, punitive and emotional distress
damages.

Id.

Accordingly, Plaintiff may not recover either punitive or emotional

distress damages for any of her claims that are barred by the Eleventh Amendment.
See id.
For those claims that are not barred by the Eleventh Amendment, Plaintiff should
be able to recover punitive or emotional distress damages unless the recovery of those
damages is otherwise barred by statutory or common law.

Defendants set forth

arguments, which the Court will address below, as to why Plaintiff should not be
permitted to recover punitive and emotional distress damages under the FMLA and Title

41

VII even absent Eleventh Amendment immunity.

However, Defendants make no

arguments addressing whether Plaintiff may recover punitive or emotional distress
damages for those claims brought against Defendants under the ADA, ADEA, or state
law that are not barred by Eleventh Amendment immunity. As such, the Court declines
to make any ruling here as to Plaintiff's ability to recover those damages under the ADA,
ADEA or state law.
Section 2617(a) of the FMLA sets forth the remedies for an employer's violation
of the statute. 29 U.S.C. § 2617(a). A number of courts previously have held that a
plaintiff cannot recover punitive or emotional distress damages under the FMLA
because neither are expressly provided for in Section 2617(a). See Brumbalough v.
Camelot Care Ctrs., Inc., 427 F.3d 996, 1007-08 (6th Cir. 2005) (holding that emotional
distress damages are not recoverable under the FMLA); Johnson v. Honda of Am. Mfg.,
221 F. Supp. 2d 853, 858 (S.D. Ohio 2002) (recognizing that punitive and emotional
distress damages are unavailable under the FMLA); Rosania v. Taco Bell of Am., Inc.,
303 F. Supp. 2d 878, 881-82 (N.D. Ohio 2004) (collecting cases); Cox v. True N.
Energy, LLC, 524 F. Supp. 2d 927, 948 (N.D. Ohio 2007) ("Under the federal FMLA, a
plaintiff is not entitled to recover emotional distress damages or punitive damages.");
Gutierrez v. 78th Judicial Dist. Court, No. 1:07-cv-1268, 2009 U.S. Dist. LEXIS 45215,
at *15-16 (W.D. Mich. May 29, 2009) ("Plaintiff is advised that compensatory damages
for emotional distress are not available under FMLA . . . nor are punitive damages of
any sort.") (internal citations omitted). As Plaintiff has set forth no argument to the
contrary, this Court concludes that Plaintiff is barred from recovering punitive or

42

emotional distress damages from any of the Defendants for her claims brought under
the FMLA.
We turn now to Title VII. Defendants argue that governmental entities, including
the State of Ohio, are immune from punitive damages under Title VII. They make no
argument with respect to emotional distress damages. Section 42 U.S.C. § 1981a
provides, in pertinent part:
(a) Right of recovery.
(1) Civil rights. In an action brought by a complaining party
under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5 [or 2000e-16]) against a respondent who engaged in
unlawful intentional discrimination (not an employment practice that
is unlawful because of its disparate impact) prohibited under section
703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3 [or
2000e-16]), and provided that the complaining party cannot recover
under section 1977 of the Revised Statutes (42 U.S.C. 1981), the
complaining party may recover compensatory and punitive damages
as allowed in subsection (b) . . . .
(b) Compensatory and punitive damages.
(1) Determination of punitive damages. A complaining party
may recover punitive damages under this section against a
respondent (other than a government, government agency or
political subdivision) if the complaining party demonstrates that the
respondent engaged in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.
42 USCS § 1981a.

Based on the plain language of this Section, a government,

government agency and a political subdivision are all immune from punitive damages
for unlawful intentional discrimination. 42 U.S.C. § 1981a; see also LaBarre v. Memphis
Light, Gas & Water Div., No. 04-2401 B, 2006 U.S. Dist. LEXIS 11395, at *2 (W.D.
Tenn. Feb. 28, 2006) (citing Poe v. Memphis Light, Gas & Water Div., No. 98-5942,
1999 U.S. App. LEXIS 32083, at *3 (6th Cir. Nov. 30, 1999)). This Section also has

43

been interpreted to apply to officials of those entities who are sued in their official
capacities. Krawczyk v. Del Re, 37 F. Supp. 2d 1106 (N.D. Ill. 1999); see also Will, 491
U.S. at 71 (recognizing that an individual sued in his official capacity for an entity is
considered a suit against the entity itself). As Plaintiff makes no argument in opposition,
this Court concludes that Plaintiff is barred from recovering punitive damages against
any of the Defendants under Title VII.
IV.

CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss (Doc. 21) is GRANTED

IN PART and DENIED IN PART. It is hereby ORDERED that:
1. as to Hamilton County,
a. all of Plaintiff's claims in Counts I through VII remain pending; and
b. Plaintiff is ORDERED to properly serve Hamilton County with
summons and the Amended Complaint within 20 days of entry of this
Opinion and Order or risk dismissal of all claims against Hamilton
County.
2. as to Judge Grady in her official capacity representing the Hamilton County
Juvenile Court,
a. Plaintiff's state law claims in Counts III, V and VII are DISMISSED in
their entirety;
b. Plaintiff's claim in Count I for violation of the family-care provision of
the FMLA remains pending in its entirety;
c. Plaintiff's claim in Count I for retrospective and compensatory relief for
violation of the self-care provision of the FMLA is DISMISSED;

44

d. Plaintiff's claim in Count I for prospective relief for violation of the selfcare provision of the FMLA remains pending;
e. Plaintiff's claim in Count II for retrospective and compensatory relief for
violation of the ADEA is DISMISSED;
f. Plaintiff's claim in Count II for prospective relief for violation of the
ADEA remains pending;
g. Plaintiff's claim in Count IV for retrospective and compensatory relief
for violation of the ADA is DISMISSED;
h. Plaintiff's claim in Count IV for prospective relief for violation of the
ADA remains pending; and
i.

Plaintiff's claim in Count VI for violation of Title VII remains pending in
its entirety.

3. as to Superintendent Bowman,
a. all of Plaintiff's claims in Counts I through VII remain pending in their
entirety.
4. as to punitive damages and emotional distress damages,
a. Plaintiff may not recover punitive or emotional distress damages for
those claims that are barred by the Eleventh Amendment;
b. Plaintiff may not recover punitive or emotional distress damages for
her claims against any Defendants in Count I for violation of the FMLA;
and
c. Plaintiff may not recover punitive damages for her claims against any
Defendants in Count VI for violation of Title VII.

45

IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

46