Nelson v. Clermont County Veterans' Service Commission
Filing
25
ORDER granting 13 Motion to Dismiss for Failure to State a Claim. All Claims against the Board are dismissed with prejudice and the Board is hereby Dismissed as a party from this action. Plaintiff's claims against the remaining defendant shall proceed according to the prior scheduling order. Signed by Judge Herman J. Weber on 3/15/12. (do1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KRISTAN D. NELSON,
Plaintiff
v.
Case No. 1:11-cv–335-HJW
CLERMONT COUNTY VETERANS’
SERVICE COMMISSION, et al.,
Defendants
ORDER
In this employment discrimination action, plaintiff Kristan Nelson has sued two
defendants: the Clermont County, Ohio, Veteran Services Commission (“VSC”), and
the Clermont County, Ohio, Board of Commissioners (“Board”). The VSC has filed
an answer. The Board has filed a “Motion to Dismiss” (doc. no. 13), contending that
as a matter of law, it is not the plaintiff’s employer and therefore must be dismissed
from this action.
Plaintiff opposes the motion.
Having fully considered the
pleadings and the parties’ briefs, the Court will grant the motion for the following
reasons:
I. Factual Allegations and Procedural History
In her amended complaint, plaintiff indicates that she was hired by the VSC in
Clermont County, Ohio, as an administrative assistant in 2002 (doc. no. 6, ¶ 5). In
January of 2007, Danny Bare became her new supervisor (¶ 7). In December of 2008,
he gave her an overall performance rating of “Very Good.” In August of 2009, Ms.
Nelson discovered that her 13-year-old daughter had been sexually assaulted by
unknown assailants several months earlier in June of 2009. Plaintiff alleges that she
and her daughter both developed extreme anxiety, depression, and posttraumatic
stress disorder (“PTSD”) (¶ 8). Plaintiff requested, and was granted, five weeks of
FMLA leave from September 29, 2009 through November 8, 2009 “to care for her
daughter during her mental health crisis” (¶¶ 8- 9). Plaintiff alleges in her amended
complaint that she also took this leave “to cope with her own serious health
condition” (¶ 9).1
When plaintiff returned to work on November 9, 2009, she alleges that Mr. Bare
summoned her to his office and, in the presence of Mark Coyle, a Senior Veteran
Service officer, asked her to provide him with a breakdown of her workflow, including
the specific amount of time she spent on each of her job duties on a daily, monthly,
and annual basis (¶ 12). The same day, they also discussed some overtime hours she
claimed to have worked several months earlier, but not reported (¶ 13). According
to plaintiff, Mr. Bare insisted that she submit an amended time report for these hours.
Plaintiff submitted claims for overtime and received payment for it.
Plaintiff alleges that it was “necessary” on occasion for her daughter to
accompany her to work, due to the daughter’s PTSD (¶ 11). Plaintiff indicates that on
November 13, 2009, Mr. Bare informed her that it was not appropriate for her teenage
daughter to be present in the workplace (¶ 14) and that she “must choose between
caring for her daughter or keeping her job” by November 18, 2009 (¶ 15). Plaintiff met
1
Plaintiff’s FMLA certification says nothing about her own alleged “serious
health condition.” It indicates that plaintiff requested FMLA leave “to provide
emotional support” and “to drive her daughter to and from doctor appointments”
(doc. no. 19-9 at 1, 5). In the medical provider section, both providers refer only to
the daughter’s treatment for a back injury and counseling.
Page 2 of 15
with Elizabeth Mason, Asst. Prosecuting Attorney for Clermont County, on November
16, 2009, to inquire about filing a grievance (¶ 17). Plaintiff indicates that Ms. Mason
informed Mr. Bare by telephone that plaintiff was considering filing a grievance
against him (¶ 18). Plaintiff alleges that when she returned to the office, Mr. Bare was
angry, told her he had lost all confidence in her, and criticized her work (¶¶ 19-21).
Two days later, on November 18, 2009, plaintiff proposed to Mr. Bare that she work
a 35-hour work week schedule, with no lunch time and the work day ending at 2:30
p.m. (¶ 22). She alleges that Mr. Bare did not respond to this proposal, and instead,
advised her that she could either resign or be fired, because her “declining
performance to undermine me (sic)” (¶ 23).2
On November 20, 2009, plaintiff received a letter informing her that a
pre-disciplinary hearing was scheduled on November 24, 2009 for charges against her
(¶¶ 24-25). Except for a reference to unauthorized overtime, plaintiff’s complaint does
not identify the charges. Plaintiff acknowledges that she presented no evidence at
this hearing, but contends that the letter setting forth the charges was “vague” (¶ 26).
She submitted a written rebuttal after the hearing (¶ 27). Hearing Officer Sgt. Michael
McConnell of the Clermont County Sheriff’s Department subsequently determined
that the VSC had substantiated the charges against plaintiff (¶ 28).
Plaintiff
complains that the officer “ignored” her rebuttal letter (¶ 29) and alleges that the
prosecutor (Ms. Mason) threatened to indict her for submitting the claims for
2
Plaintiff has apparently omitted a word or words from this sentence in the
amended complaint, but its meaning is still discernible.
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unauthorized overtime (¶ 30).
Plaintiff contends that she was threatened with
prosecution to “deter” her from pursuing claims and to “retaliate against” her for
pursuing claims (¶ 30).
On May 14, 2010, plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”) and Ohio Civil Rights Commission
(“OCRC”) (¶ 31). In that charge, she named only the VSC as her employer and
indicated she was complaining of alleged discrimination based on “disability” (doc.
no. 13, attached charge). Plaintiff received a “Right to Sue” letter dated April 7, 2011.
On May 20, 2011, plaintiff timely filed a six-count federal complaint, alleging
violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101
et seq., the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.,
and Ohio R.C. §§ 4112.01(A) and (I).
She also alleged intentional infliction of
emotional distress under Ohio common law. Plaintiff named a single defendant – the
VSC – as her employer.
Plaintiff then amended her complaint to add a second defendant (the “Board”)
as “employer”(doc. no. 6). Plaintiff includes the conclusory allegation that even
though she did not name Clermont County as her employer in her EEOC charge, the
charge “effectively included Clermont County as a respondent”(¶ 31).3 In turn, the
3
Generally, a party not named in an EEOC charge cannot be sued in a
subsequent civil action for employment discrimination. This requirement is designed
to provide notice to the charged party and to facilitate the EEOC’s efforts to obtain
voluntary reconciliation of complaints. Courts have dismissed suits on the ground
that the specific defendants were not named in the original charge. See, e.g.,
E.E.O.C. v. General Motors Corp., 1973 WL 323 (N.D. Ohio 1973).
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newly-added defendant Board filed a motion to dismiss pursuant to Rule 12(b)(6),
asserting that the VSC, not the Board, is the plaintiff’s employer, and that, as a matter
of Ohio law, the VSC is responsible for supervising, hiring, and firing its own
employees. The Board indicates it has no such authority over VSC employees and
thus requests the Court to dismiss the plaintiff’s claims against it (doc. no. 13 at 11).
II. Issues Presented
The main issue before the Court is whether the VSC, not the Board, was the
plaintiff’s “employer” for purposes of the ADA, FMLA, and Ohio law. The Court will
consider whether all the claims against the Board should be dismissed pursuant to
Rule 12(b)(6).
III. Relevant Law
The ADA requires a “covered entity” to provide “reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with
a disability who is an . . . employee.” 42 U.S.C. §§ 12111, 12112. The ADA defines an
“employer” as “a person engaged in an industry affecting commerce who has 15 or
more employees for each working day in each of 20 or more calendar weeks in the
current or preceding calendar year.” Id.4
The FMLA makes it "unlawful for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made unlawful
4
The Board suggests that plaintiff may have added the Board as a named
defendant in an attempt to meet the numerosity requirement for covered employers
under the ADA (doc. no. 21 at 3 “Plaintiff needs an employer with fifteen or more
employees to keep her claims in federal court. . . her former employer [the VSC] has
only eleven”).
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by this subchapter." 29 U.S.C. § 2615. The term "employer" expressly includes "any
public agency, as defined in section 203(x) of this title." 29 U.S.C. § 2611(4)(A)(iii).
Section x defines the term “public agency” to include “any agency of . . . a political
subdivision of a State.” 29 U.S.C. § 203(x). The FMLA regulations explain that
“[p]ublic agencies are covered employers without regard to the number of employees
employed.” 29 C.F.R. § 825.104(a); 29 C.F.R. § 825.104(d). “Normally, the legal entity
which employs the employee is the employer under the FMLA.”
29 C.F.R. §
825.104(c).5
For purposes of the Ohio Civil Rights Act, the term “employer” is defined to
include “the state, any political subdivision of the state, any person employing four
or more persons within the state, and any person acting directly or indirectly in the
interest of an employer.” Ohio Rev.Code Ann. § 4112.01(A)(2).
IV. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a
complaint. Ashcroft v. Iqbal,129 S.Ct. 1937, 1950 (2009). To survive a motion to
dismiss, “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ” Id. at 1949 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 550 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
5
The Board appropriately did not seek dismissal under Rule 12(b)(1) for lack
of jurisdiction, as the FMLA's definitions of “employer” and “eligible employee” are
not considered “jurisdictional.” Cobb v. Contract Transport, Inc., 452 F.3d 543, 548
(6th Cir. 2006)(citing Arbaugh v. Y & H Corp., 546 U.S. 500, 510-511 (2006)); see also,
e.g., Taborac v. NiSource, Inc., 2011 WL 5025214, *2 (S.D.Ohio).
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that the defendant is liable for the misconduct alleged.” Id. To survive a motion to
dismiss, more is required than "unadorned, the-defendant-unlawfully-harmed me
accusations." Id. “Although the court must accept well-pleaded factual allegations
of the complaint as true for purposes of a motion to dismiss, the court is not bound
to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic,
550 U.S. at 555. A plaintiff must provide the grounds for entitlement to relief “rather
than a blanket assertion of entitlement to relief.” Id. at fn.3.
V. Discussion
First, plaintiff significantly misstates the applicable standard for Rule 12(b)(6)
by asserting that “the Court may sustain Clermont County’s motion only if it appears
beyond a reasonable doubt that Ms. Nelson can prove no set of facts in support of
her claims” (doc. no. 19 at 4). Plaintiff cites a case from 1988 which cites language
from Conley v. Gibson, 355 U.S. 41 (1957), which is no longer good law on this point.
In Bell Atlantic, the United States Supreme Court specifically rejected this language
and observed:
“[T]here is no need to pile up further citations to show
that Conley's “no set of facts” language has been
questioned, criticized, and explained away long enough.
. . . this famous observation has earned its retirement. The
phrase is best forgotten as an incomplete, negative gloss
on an accepted pleading standard: once a claim has been
stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the
complaint.”
Id. at 563. The United States Supreme Court emphasized that to state a plausible
claim, a plaintiff’s complaint must provide adequate factual “grounds” upon which
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the claim rests. Id.
In the present case, the plaintiff’s allegation in her amended complaint that
both defendants were her “employer” within the definitions of the ADA and FMLA is
essentially conclusory (doc. no. 6 at 33, 41, 45). As the United States Supreme Court
has explained, legal conclusions “must be supported by factual allegations”in the
complaint that give rise to an inference that the defendant is, in fact, liable for the
misconduct alleged. Iqbal, 129 S.Ct. at 1949–50. To be liable under the ADA and
FMLA, the defendant must be a covered employer that employed the plaintiff.
Plaintiff provides a few factual “grounds” in her amended complaint in an effort
to give plausibility to her assertion that the Board was her employer. For example,
she alleges that “[e]mployees of the VSC are treated as employees of Clermont
County, are subject to the Clermont County Board of Commissioners Policy and
Procedural [sic] Manual, and receive their payroll checks from the Clermont County
Auditor” (doc. no. 6 at ¶ 4). Plaintiff contends she has sufficiently alleged “specific
examples of how Clermont County acted as her employer” (doc. no. 19 at 2).
Even taken as true, the allegations of the amended complaint fall short of
stating a plausible claim that the Board was plaintiff’s employer for purposes of the
ADA, FMLA, or Ohio law. See, e.g., Lavelle v. Wood County, Slip Copy, 2010 WL
2572861 (N.D.Ohio 2010) (rejecting plaintiff’s assertion that an economic link between
Wood County and plaintiff was sufficient to establish the county as plaintiff's
“employer” merely because her paycheck came out of the county treasury).
To determine whether a particular entity is the "employer" of a plaintiff, the
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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.
Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 611-12 (6th Cir. 2003).
Plaintiff does not allege that the Board supervised VSC employees’ day to day
activities, hired or fired VSC employees, controlled VSC work assignments, issued
instructions to the VSC, or conducted any other activities commonly performed by
employers. By state law, the Board has no authority under Ohio law to do any of
these things for VSC employees. See Satterfield v. Tennessee, 295 F.3d 611, 617
(observing that in evaluating the overall relationship, the “most important factor” was
“the employer’s ability to control job performance and employment opportunities of
the aggrieved individual”); Sanford v. Main Street Baptist Church Manor, Inc., 327
Fed.Appx. 587, 594 (6th Cir. 2011) (“[A]ggregation of joint employees for the purposes
of establishing the Title VII numerosity requirement is permissible when one joint
employer exercises control over the employees of the other joint employer”). Plaintiff
has not pleaded factual content that would allow this Court to draw the reasonable
inference that the defendant Board could be liable for the misconduct alleged.
The Board asserts that, even assuming that plaintiff’s allegations are true for
purposes of Rule 12(b)(6), none of her allegations “change the legal status of the
Clermont County Board of County Commissioners as a separate employer from
Defendant Clermont County Veterans Service Commission.”(doc. no. 21 at 1). The
Board points out that Ohio statutes set forth the responsibilities and authority of the
respective governmental entities, including the VSC. To carry out its duties, a VSC
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is authorized to operate and staff a veterans service office. Ohio R.C. §§ 5901.03(A);
5901.06-.07; 5901.11. The Ohio Supreme Court has observed that:
“The history of R.C. 5901.11 demonstrates that the
General Assembly intended veterans service
commissions to have authority over their budgets,
without discretionary oversight by the boards of county
commissioners. . . . veterans service commissions enjoy
a unique history and status. They are vested with a
special public trust to see that those who have served our
country receive a decent burial and are remembered with
honor, and that they and their families are kept from
indigency.”
Lynch v. Gallia Cty. Bd. of Commrs., 79 Ohio St.3d 251, 257 (1997). Ohio law provides
that the VSC, not the Board, has the authority to hire, fire, supervise, and pay its own
employees. See Ohio R.C. § 5901.03 (“The [VSC’s] duties shall include but are not
limited to . . . A) Employing such staff as are necessary to carry out the commission's
duties, and fixing their compensation; B) Establishing policies and procedures for the
administration of the commission and the veterans service office . . .”); Ohio R.C. §
5901.07 (“The [VSC] shall employ the necessary clerks, stenographers, and other
personnel to assist the service officers in the performance of duties and shall fix their
compensation “).
Under Ohio law, the VSC is a separate governmental entity with its own budget.
Lynch, 79 Ohio St.3d at 257-58 (finding that “the General Assembly intended for
Veterans Service Commissions to have authority over their budgets, without
discretionary oversight by the boards of county commissioners”). The Board has no
authority to revise the VSC budget. Id. at 257 (“boards of county commissioners are
not permitted to revise lawful veterans service commission budgets”). The U.S.
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Census recognizes the VSC as a separate governmental entity. See 29 C.F.R. §
825.108 (indicating that one factor in determining whether entities are separate is
“whether they are treated separately for statistical purposes in the Census of
Government issued by the Bureau of the Census, U.S. Department of Commerce”).
The Board points out that plaintiff rests much of her argument on duties
provided by other entities or government employees (doc. no. 21 at 1-2).6 The Board
asserts that “the facts asserted by Plaintiff in support of her belief that she was
employed by both the Veterans Service Commission and the Board of County
Commissioners demonstrate only a misapprehension of the law” (doc. no. 21 at 2).
The fact that various officials (i.e. the HR department, county prosecutor, auditor, a
hearing officer from the sheriff’s department, OPERS) all fulfilled their respective
functions does not mean that those individuals or the county therefore “employed”
the plaintiff (doc. no. 21 at 1-2).
Plaintiff argues that the Court must decide the “employer” issue on summary
judgment after discovery (doc. no. 19 at 5). On the contrary, research reflects
numerous cases where defendants were dismissed on the ground that they were not
the plaintiff’s employer as a matter of law, and thus could not be liable for
employment discrimination or retaliation claims. See, e.g., Lavelle v. Wood County,
Slip Copy, 2010 WL 2572861 (N.D.Ohio 2010) (dismissing pursuant to Rule 12(b)(6)
because county defendant was not the plaintiff’s “employer”); Longstreet v. State of
6
In her response, plaintiff cites the paragraphs from the initial complaint (see
doc. no. 19 at 4, citing doc. no. 3). However, that pleadings has been superceded by
the Amended Complaint (doc. no. 6).
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Ohio, Indus. Commission., 2005 WL 3298883 (N.D.Ohio 2005) (dismissing pursuant
to Rule 12(b)(6) because OPERS had no control over plaintiff’s job performance and
was not plaintiff’s employer); Weintraub v. Board of County Commissioners for St.
Mary's County, Slip Copy, 2009 WL 2366140 (D.Md. 2009) (dismissing the Board
because it was not plaintiff’s employer); Amarnare v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 611 F.Supp. 344, 348 (S.D.N.Y.1984) (observing in ADA case that
whether an entity is an "employer" is a question of law and that the "extent of the
employer's right to control the ‘means and manner' of the worker's performance is
the most important factor"), affirmed 770 F.2d 157 (1985).
Plaintiff cites an out-of-circuit case, Bristol v. Bd. of Cty. Commissioners, Clear
Creek Cty., 312 F.3d 1213 (10th Cir. 2002) (en banc) in support. Such case is not
binding here. More importantly, the cited case does not help plaintiff’s argument. In
Bristol, the plaintiff sued under Title I of the ADA, which requires a covered entity to
provide reasonable accommodations to an employee with a disability. 42 U.S.C. §
12112. Bristol claimed that he was an employee of both the Sheriff's office and the
Board of County Commissioners. The Court of Appeals for the Tenth Circuit granted
en banc rehearing to determine “whether the Board can be considered an employer
of Bristol so as to trigger the accommodation requirements of the ADA.” Bristol, 312
F.3d at 1216 n. 2. The Court discussed the statutory authority of the respective
governmental entities, considered the amount of authority and control the alleged
employer had over the performance of the employee’s work, and concluded that “the
Board of County Commissioners has no control over the Sheriff's employees.” Id. at
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1218–21. The Court determined that the Board was not Bristol's employer as a matter
of law, and therefore, the Board had no duty under the ADA to provide reasonable
accommodation to Bristol. Id. at 1219. The Court of Appeals explained:
Employees of the County Sheriff are, of course, “County
employees” in the same sense that employees of the
federal judiciary are “federal employees.” Such common
usage has no bearing on our construction of the ADA. The
instant case is about whether the Board can be
considered an employer of Bristol so as to trigger the
accommodation requirements of the ADA.
Id. at 1216 fn.2. The Court of Appeals remanded the case “with instructions to
dismiss the action as to the Board.” Id. at 1215. The present plaintiff’s argument
suffers from the same defects as the plaintiff in Bristol.7
Both the Board and the plaintiff also cite Sutherland v. Michigan Dept. of
Treasury, 344 F.3d 603 (6th Cir. 2003). There, employees of the Michigan Department
of Treasury (“Treasury”) had alleged employment discrimination and named a variety
of governmental entities and officials as defendants. The Treasury possessed the
sole authority to appoint, hire, fire and promote eligible employees. The other
defendants did not have such control and could not be liable for any alleged adverse
employment actions against Treasury employees. The Court of Appeals for the Sixth
Circuit held that the Treasury was the entity with the authority to make the relevant
7
Plaintiff attaches some exhibits to her response and indicates that she “can
assure the Court that her allegation that the County, as well as CCVSC, acted as her
employer is well-founded, and even before discovery is taken, she has numerous
other examples of the County functioning as her employer” (doc. no. 19 at 3). Such
assurance would not satisfy the requirements of Rule 56(e), and in any event,
nothing in the exhibits suggests that the Board had any authority over the manner
and means of plaintiff’s work at the VSC.
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employment decisions and controlled the manner and means of the employees' work,
and thus, was the sole employer. Id. at 611-12.
Finally, plaintiff argues that her claim of intentional infliction of emotional
distress may be asserted against the Board because such claim is not based on the
employer status of either defendant” (doc. no. 19 at 3). The amended complaint
reflects otherwise. Plaintiff bases such claim in large part on the allegation that the
defendants terminated her for seeking reasonable accommodation and for using
FMLA leave. As already discussed, the Board had no authority to terminate plaintiff.
To the extent plaintiff bases (in part) her emotional distress claim against the
Board on an alleged “threat of prosecution” by a county prosecutor (see doc. no. 19
at 3), this Court has previously rejected similar claims. See, e.g., Collins v. Allen,
2006 WL 2505928 (S.D.Ohio 2006) (J. Beckwith). In Collins, the Court found that the
plaintiff's derivative claims, premised on her allegation that the county prosecutor
was an “agent” of the Board of County Commissioners, had no support in the Ohio
law governing the office of the county prosecuting attorney. Collin’s direct claims
against the Board similarly failed, because under Ohio law, the Board had no
supervisory authority or control over the elected prosecuting attorney.
VI. Conclusion
The amended complaint does not plead facts sufficient to show an actual
employment relationship between plaintiff and the Board. As a matter of law, the
Board did not control the manner and means of plaintiff’s work and was not her
employer for purposes of the ADA, FMLA, and Ohio law. Even taking all well-pleaded
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nonconclusory allegations as true, the amended complaint fails to state a claim
against the Board.
Accordingly, the defendant Board’s “Motion to Dismiss” (doc. no. 13) pursuant
to Rule 12(b)(6) is GRANTED; all claims against the Board are dismissed with
prejudice; the Board is hereby dismissed as a party from this action.
The plaintiff’s claims against the remaining defendant shall proceed according
to the Scheduling Order issued on August 30, 2011 (doc. no. 23).
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior District Judge
United States District Court
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