Nelson v. Clermont County Veterans' Service Commission

Filing 85

REPORT AND RECOMMENDATIONS re 51 MOTION for Leave to File Second Amended Complaint filed by Kristan D Nelson, 36 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Clermont County Veterans' Service Commissio n, 58 MOTION to Dismiss Plaintiff's Motion for Leave to File Second Amended Complaint filed by Clermont County Veterans' Service Commission: defendant's 2nd motion to dismiss (Doc. 36) be GRANTED IN PART; plaintiff's motion for leave to file 2nd amended complaint (Doc. 51) be GRANTED IN PART; defendant's motion to dismiss (Doc. 58 be GRANTED IN PART. Except as specifically granted in part herein, the motions of both parties (Doc. 36, 51, 58) should be DENIED. Objections to R&R due by 9/27/2012. Signed by Magistrate Judge Stephanie K. Bowman on 9/10/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KRISTAN D. NELSON,

Case No. 1:11-cv-335

Plaintiff,

Weber, J.
Bowman, M.J.

v.

CLERMONT COUNTY VETERANS
SERVICE COMMISSION, et al.,
Defendants.

REPORT AND RECOMMENDATION
I. Background
Plaintiff Kristan D. Nelson, through counsel, filed a six-count federal complaint
against the Clermont County Board of Commissioners and the Veteran’s Service
Commission in Clermont County, Ohio (“CCVSC”), alleging that her former employer
violated the federal Americans with Disabilities Act of 1990 (“ADA”), the Family and
Medical Leave Act of 1993 (“FMLA”), and comparable Ohio law.
Plaintiff began working as an administrative assistant for CCVSC, a public
agency, in 2002.

In 2007, Plaintiff began reporting to Danny Bare as her direct

supervisor. In August 2009, Plaintiff learned that her 13-year-old daughter had been
raped by unknown assailants in June 2009. (Doc. 6). As a result, Plaintiff alleges that
both she and her daughter developed anxiety and depression, and post-traumatic stress
disorder. Plaintiff requested and was awarded a period of FMLA leave from September

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29, 2009 through November 8, 2009. (Doc. 6, ¶¶8-9). Plaintiff returned to work on
November 9, 2009, but began bringing her daughter with her to work. (Doc. 6, ¶11).
On November 13, 2009, Mr. Bare advised her that it was not appropriate for her to bring
her daughter to work. Plaintiff alleges that Mr. Bare instructed her that she must choose
between her job and caring for her daughter by November 18, 2009. (Doc. 6, ¶15). In
response, Plaintiff proposed a 35 hour work-week, with no lunch break and with her
work-day ending at 2:30 p.m.

(Doc. 6,

¶22).

Plaintiff alleges that her employer

provided no response to her proposal and instead terminated her employment. The
stated reason for her termination concerned falsification of payroll records/concealment
of overtime.
Shortly after Plaintiff filed her complaint in this Court, the Court dismissed one of
the two named Defendants, on grounds that the Clermont County Board of
Commissioners was not, as a matter of law, the Plaintiff’s employer, and therefore not
subject to suit for employment discrimination. (Doc. 25). Later, the Court dismissed
Plaintiff’s ADA claim (Count One) against the second Defendant, CCVSC. Although
CCVSC was Plaintiff’s employer, the Court held that CCVSC does not have the
requisite number of employees to be a covered employer subject to the ADA. (Doc.
34).

The Court additionally dismissed Plaintiff’s claim of “disability discrimination”

(Count Two) for failure to state a claim, because the amended complaint did not
sufficiently allege that Plaintiff sought her employer’s accommodation for her own
alleged disability, rather than merely to take care of her daughter. (Doc. 34 at 12-14).
Following the Court’s dismissal of the Board of Commissioners and Plaintiff’s
ADA and disability claims, CCVSC moved to dismiss three additional counts of Plaintiff’s
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First Amended Complaint.

In response, Plaintiff moved for leave to file a Second

Amended Complaint. Defendant also has moved to dismiss or to strike the proposed
Second Amended Complaint.

For the reasons set forth below, I recommend that

Defendant’s motions be granted in part, and denied in part.
II. Analysis
A. Defendant CCVSC’s Motion to Dismiss Counts 4, 5 and 6 of
Plaintiff’s First Amended Complaint
Defendant CCVSC has moved to dismiss three additional counts of Plaintiff’s first
amended complaint, on grounds that the Court previously dismissed related claims.
(See Doc. 36). In response, Plaintiff concedes that a portion of Count Four, all of Count
Five, and a portion of Count Six are subject to dismissal based upon the Court’s prior
rulings. However, Plaintiff argues that a portion of her retaliation claim (Count Four) and
of her intentional infliction of emotional distress claim (Count Five) allege sufficient
additional facts and/or legal theories to survive Defendant’s motion.
1. FMLA Retaliation (Count Four)
Noting the previous dismissal of Plaintiff’s underlying disability claim, Defendant
CCVSC argues that because Plaintiff’s allegations fail to describe any conduct that
could be considered unlawful under the FMLA concerning Plaintiff’s disability (rather
than her daughter’s), any retaliation claim (Count Four) based upon the rejected
disability claim also must be dismissed. Indeed, Plaintiff concedes that any claims
under the ADA or Ohio discrimination laws (including retaliation claims under Count
Four), are subject to immediate dismissal in light of the Court’s prior rulings, subject only

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to Plaintiff’s right to appeal. (Doc. 48 at 2). However, she argues that a portion of her
retaliation claim falls under the FMLA, and therefore survives.
By way of background, in Count Three of her First Amended Complaint, entitled
“FMLA Violation,” Plaintiff alleges that both she and her daughter suffer from posttraumatic stress disorder (“PTSD”), a serious health condition. Plaintiff further alleges
that due to Plaintiff’s and her daughter’s PTSD, and the “ongoing harassment” of Mr.
Bare, she requested an extended period of FMLA leave. (Doc. 6 at ¶48).

Within ten

days of her return to work on November 9, 2009, Count Three alleges that Plaintiff was
terminated “because she had taken FMLA leave,” in violation of 29 U.S.C. §2915(a).
(Doc. 6 at ¶51).1
Absent any direct evidence, a claim of FMLA retaliation may be proven through
the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).

Under that framework, in order to state a claim for FMLA

retaliation, a plaintiff must demonstrate: (1) she was engaged in activity protected under
the FMLA; (2) the employer was aware of her FMLA activity; (3) after learning of the
FMLA activity, the employer took an adverse employment action against the FMLA
employee; and (4) there was a causal connection between the protected FMLA activity
and the adverse employment action. See Killian v. Yorozu Automotive Tennessee, Inc.,
454 F.3d 549, 556 (6th Cir. 2006).
Although Count Three generally alleges that Plaintiff was fired “because she had
taken FMLA leave,” in Count Four, Plaintiff sets forth a separate retaliation claim based
upon her allegation that she engaged in protected activity “when she sought out
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Defendant represents that it intends to file an additional m otion to dism iss the FMLA claim in the near
future.
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information regarding filing a grievance against Mr. Bare.” (Doc. 6 at ¶53). Centering
on her proposed grievance then, Plaintiff asserts that Count Four sets forth a claim
distinct from Count Three, by alleging that Plaintiff suffered an adverse employment
action when she was terminated “within two (2) days of Mr. Bare discovering that
[Plaintiff] intended to file a grievance against him.” (Doc. 6 at ¶54). Based upon an
earlier allegation that Mr. Bare reacted with “harassment,” (Doc. 6 at ¶16), Plaintiff
contends that retaliation in reaction to a planned grievance sufficiently alleges a standalone claim of FMLA retaliation.
In addition, although not specifically pled in her first amended complaint,2 Plaintiff
argues that her allegations support a theory that she was fired in retaliation for seeking
an intermittent or reduced leave schedule under the FMLA. Plaintiff argues that her
November 18, 2009 proposal for a modified work schedule that would allow her to leave
work by 2:30 p.m. should be viewed as a request for “intermittent leave” or a “reduced
leave schedule” under the FMLA. See 29 U.S.C. §2612(b); 29 C.F.R. §825.202(a). In
the alternative to these FMLA retaliation theories, Plaintiff seeks leave to file a second
amended complaint.
In its motion to dismiss, Defendant contends that Plaintiff’s allegations fail to
state a claim for FMLA retaliation under either of the two theories she proposes.
Tackling the latter theory first, Defendant argues that Plaintiff’s modified work schedule
proposal does not, as a matter of law, constitute a request for intermittent leave or a
reduced leave schedule under the FMLA, because Plaintiff sought to change her workday hours so that she would not be required to take any leave at all. Arguably, denial of
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Plaintiff includes additional allegations relating to this theory in her proposed second am ended com plaint.
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a modified work schedule that would require an employer to open its doors during nonbusiness hours, in order to permit an employee the opportunity to avoid taking any
leave at all, does not violate the FMLA.3 If Plaintiff’s request for modified hours did not
fall under the FMLA, then Defendant did not violate the FMLA or “retaliate” against her
by denying that request. For similar reasons, Defendant argues that its denial of the
modified work schedule cannot be considered to be an adverse employment action.
With respect to an FMLA retaliation claim focused on the grievance, Defendant
reasons that the planned grievance was not “protected activity” under the FMLA,
because the grievance did not specifically concern FMLA activity. Assuming that the
grievance did not relate to protected FMLA activity, Defendant argues that any actions
Mr. Bare took would not be sufficient to state an FMLA retaliation claim.
While it is debatable whether Plaintiff’s first amended complaint (as opposed to
her proposed second amended complaint) sufficiently sets forth her “intermittent leave”
FMLA retaliation theory,4 I decline to recommend dismissal of Plaintiff’s FMLA retaliation
claim based upon Defendant’s arguments. The record concerning whether Plaintiff’s
proposed 35-hour work week could be construed as a request for intermittent FMLA
leave is not yet sufficiently developed to make a factual determination. Likewise, the

3

Defendant’s reliance upon Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475, 481 (6th Cir. 2012)
is m isplaced. There, the Sixth Circuit held that - despite ADA regulations suggesting that a m odified work
schedule m ay be required as a reasonable accom m odation in som e circum stances - an em ployer’s denial
of a request for a m odified work schedule to shorten the employee’s commute was not required under the
ADA. Regan is not particularly relevant with respect to Plaintiff’s FMLA retaliation claim . See generally,
Murray v. AT&T Mobility, LLC, 374 Fed. Appx. 667 (7th Cir. 2010)(discussing interplay of regulatory
fram eworks, and holding that em ployer could count shortened work week, put into place as reasonable
ADA accom m odation, against em ployee’s FMLA balance).

4

Contrary to Defendant’s suggestion that Plaintiff relies on the denial of the m odified work schedule to
satisfy the “adverse em ploym ent action” elem ent of her retaliation claim , her first am ended com plaint
refers to her term ination as the adverse em ploym ent action at issue.
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record is inadequately developed on the issue of whether the grievance was in any way
related to Plaintiff’s FMLA rights. Plaintiff contends that the grievance did relate to her
FMLA protected leave, and that Mr. Bare’s alleged “harassment” of her occurred both
prior to and after the time that she took such leave. Defendant may be able to renew its
fact-based argument on summary judgment after further development of the record, but
I decline to recommend dismissal of the FMLA retaliation claim at this juncture.
2. Unlawful State Law Retaliation (Count Five)
Count Five alleges that Defendant retaliated against Plaintiff in violation of Ohio
law.

Because the Court previously held that Plaintiff failed to state a disability

discrimination claim under state law, Plaintiff concedes that this claim must be
dismissed from her first amended Complaint under the Court’s prior rulings.

As

discussed below, Plaintiff attempts to resurrect the claim through the filing of a second
amended complaint.
3. Intentional Infliction of Emotional Distress (Count Six)
In Count Six, Plaintiff’s First Amended Complaint alleges that “Defendants
terminated

Ms.

Nelson’s

employment

because

she

sought

a

reasonable

accommodation and leave to take care of her daughter and then threatened her with
criminal prosecution.”

(Doc. 6, ¶59).

Plaintiff describes Defendant’s conduct as

“extreme and outrageous.” (Id. at 60.).
To the extent that Plaintiff’s claim for intentional infliction of emotional distress
(“IIED”) arises out of the same disability discrimination claim that was previously
dismissed, Defendant argues that her emotional distress claim must fail as well. As with
part of Count Four and all of Count Five, Plaintiff concedes that “because the Court has
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previously dismissed her disability discrimination claims, she is presently unable to base
her emotional distress claim (Count Six) on an underlying disability claim.” (Doc. 48 at
9).
Also like Count Four, however, Plaintiff argues that a portion of Count Six
survives. Specifically, Plaintiff rests her IIED claim upon the allegations that she was
wrongfully terminated for seeking FMLA leave to care for her daughter. For the reasons
previously discussed in regard to Plaintiff’s FMLA retaliation claim, I recommend that
Defendant’s motion to dismiss this limited remaining portion of Count Six be denied at
this point, without prejudice to Defendant’s right to renew its arguments following further
development of the record.
By contrast, I recommend granting Defendant’s motion to the extent that
Defendant seeks dismissal of the portion of any claim relating to conduct by the
Clermont County Prosecutor’s Office, a non-party to this action. Plaintiff alleges that the
prosecutor threatened her with criminal prosecution concerning her use of overtime.
(Doc. 6 at ¶¶27, 30). However, CCVSC cannot be held liable for actions taken by the
prosecutor regarding potential criminal matters.
In her response to Defendant’s motion, Plaintiff points out that the allegations
involve conduct by Elizabeth Mason, who acted not only on behalf of the prosecutor’s
office, but remains counsel of record for CCVSC in this civil proceeding. Even though
Plaintiff does not allege that threats of criminal prosecution were actually instigated by
CCVSC, Plaintiff argues that the alleged threats of criminal prosecution can reasonably
be “imputed” to Ms. Mason’s civil client, CCVSC.

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I disagree. Plaintiff’s claim, if any, lies against Ms. Mason.5 CCVSC cannot be
held liable for intentional infliction of emotional distress under Ohio law, based upon a
prosecutor’s decision-making process in choosing to pursue or abandon a criminal
prosecution. See also Doc. 25 at 14 (noting that this Court has previously rejected
similar claims, citing Collins v. Allen, 2006 WL 2505928 (S.D. Ohio 2006)(J. Beckwith)).
B. Plaintiff’s Motion for Leave to File a Second Amended Complaint
Defendant’s Motion to Dismiss or to Strike Plaintiff’s Motion for Leave
Two days after filing her response in opposition to Defendant’s motion to dismiss
the previously dismissed claims from her first amended complaint, Plaintiff moved for
leave to file a second amended complaint. (Doc. 51). In response, Defendant CCVSC
has moved to dismiss and/or to strike the proposed second amended complaint. (Doc.
58). Defendant argues that the proposed second amended complaint improperly
interferes with this Court’s prior holdings.
Plaintiff argues that she should be permitted to amend her complaint a second
time in order to cure any perceived factual deficiencies with respect to Counts Two
through Six. Plaintiff contends that there is no prejudice to CCVSC, given the focus of
discovery to date and the recent extension of the discovery deadline.
1. The Court’s Prior Rulings
Plaintiff’s tendered second amended complaint re-asserts claims previously
dismissed by this Court.

For example, the tendered complaint again names the

Clermont County Board of Commissioners, the Defendant previously dismissed on
March 15, 2012. The tendered complaint additionally re-asserts ADA claims that were
5

Given absolute prosecutorial im m unity and other defenses, it is likely that any such claim could not itself
withstand a m otion to dism iss.
9

previously dismissed because Plaintiff’s employer, CCVSC, does not have a sufficient
number of employees to be a covered employer under the ADA.
In response to Defendant’s motion, Plaintiff states that she “will agree to an
order....dismissing the County as a defendant and the ADA claims for lack of
numerosity.” (Doc. 51 at 4). Given that concession, it is not entirely clear what Plaintiff
seeks to gain by re-asserting the claims. Citing an unpublished district court case from
New York, Plaintiff explains that she is re-stating the dismissed claims only “to preserve
her rights on appeal.” (Doc. 63 at 3). However, even the case cited by Plaintiff reflects
that it is not necessary to re-assert previously dismissed claims in order to preserve
appeal rights. On the record presented, and based upon Sixth Circuit case law and the
practice of the Southern District of Ohio, I recommend that the Court deny the proposed
amendment as tendered.6
Aside from her desire to re-assert dismissed claims for purposes of “appeal,”
Plaintiff argues that the primary purpose of the amendment is to re-assert the previously
dismissed Count Two, for state disability discrimination, by adding factual allegations
sufficient to “nudge her state law disability discrimination across the line of being
plausible,” under the “plausibility” standard applied by this Court in dismissing the claim
from her first amended complaint. (Doc. 34). See generally Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009). In addition, Plaintiff seeks to add factual allegations to more clearly
articulate her claims for FMLA retaliation, for retaliation under Ohio law, and for

6

The m em oranda of both parties contain argum ent and discussion concerning whether Plaintiff is required
to m ove to alter or am end the Court’s prior rulings, before re-asserting the previously dism issed claim s.
The Court finds it unnecessary to address this argum ent, instead concluding that the re-assertion of the
claim s at this stage is procedurally im proper under any m echanism .
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intentional infliction of emotional distress, discussed above as Counts Four, Five and
Six.
In a reply memorandum, Defendant urges this Court to deny and/or strike the
entire proposed amendment as futile. Defendant notes that certain claims and the
Clermont County Board of Commissioners were previously dismissed by this Court
solely on legal grounds, which cannot be overcome by the addition of new factual
allegations.

Moreover, Defendant argues that the additional factual allegations

concerning Counts Two through Six remain insufficient to state a plausible claim as a
matter of law.
2. New Allegations to Support Counts Two through Six
Count Two of Plaintiff’s first amended complaint contained little more than a
conclusory allegation that the Defendant “discriminated against Ms. Nelson because of
her disability.” (Doc. 6, ¶43). Construing the claim in tandem with Plaintiff’s ADA
“failure to accommodate” claim (Count One), this Court dismissed the related state law
claim because Plaintiff failed to allege that she sought a modified work schedule to
accommodate her own disability, rather than merely for the care of her daughter. (Doc.
34 at 12).
Plaintiff’s tendered second amended complaint contains a number of factual
allegations that attempt to overcome the Court’s prior determination. First, Plaintiff
alleges that, after she learned that her daughter had been sexually assaulted, Plaintiff
herself was diagnosed with PTSD.

(Doc. 51-1 at ¶8).

She alleges that her “own

medical condition was exacerbated by the harassment she was receiving from Mr. Bare
due to the leave she was taking to care for her daughter.” (Id. at ¶9.). She alleges that
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the extended FMLA leave she took from September 29 through November 8, 2009 was
“to cope with her own serious health condition, which was aggravated by Mr. Bare’s
harassment,” as well as to care for her daughter’s condition. (Id.). She alleges that
having her daughter accompany her to work relieved or reduced “the stress that caused
[Plaintiff’s] own medical condition to flare up periodically, rendering her incapable of
work.”

(Id. at ¶11). Plaintiff bolsters her “failure to accommodate” claim with the

allegation that her request for a “reduced leave schedule would have...accommodated
her own disability.” (Id. at ¶23, emphasis added). She adds that “allowing Ms. Nelson
to care for her daughter either by bringing her to work or leaving work early would have
alleviated Ms. Nelson’s own condition, preventing or at least significantly reducing the
likelihood of flare-ups that rendered her incapable of work.”

(Id.).

Finally, Plaintiff

specifically alleges under Count Two of the tendered second amended complaint that
her “disability and requested accommodation for her own disability motivated the
decision to terminate her.” (Id. at ¶43).
Notwithstanding these additional allegations, Defendant points out that the
second amended complaint still fails to allege that Plaintiff made CCVSC aware of her
own alleged PTSD in a timely manner, or that she requested any specific and
objectively reasonable accommodation for her own disability, as opposed to
accommodation only for her daughter’s illness. Therefore, Defendant argues that even
with the additional factual allegations in the second amended complaint, Count Two
continues to fail to state a claim for disability discrimination under state law because
Plaintiff fails to allege that she made Defendant aware that she herself had a disability,
upon which a specific request for reasonable accommodation was based. For the same
12

reasons, Defendant argues that Plaintiff should not be permitted to add, in her tendered
second amended complaint, a derivative state law claim for retaliation. In short, both for
the reasons Defendant seeks dismissal of Counts Four, Five and Six of Plaintiff’s first
amended complaint, and because Defendant contends that the factual allegations in the
tendered second amended fail to cure legal deficiencies, Defendant asks this Court to
deny Plaintiff’s motion for leave to further amend her complaint.
The Court agrees that the proposed second amendment, as written, is subject to
dismissal as a matter of law - but only to the extent that Plaintiff attempts to re-assert
claims against the Clermont County Board of Commissioners, or an ADA claim. The
Court’s prior dismissal of Plaintiff’s state law disability claim rested in large part upon
Plaintiff’s failure to allege that she sought any accommodation for her own PTSD. (Doc.
34 at 12).

Plaintiff has attempted to remedy this facial deficiency in her tendered

second amended complaint.

While the issue remains close,7 under the “notice

pleading” standards of Rule 8, I find that Count Two in Plaintiff’s tendered second
amended complaint is sufficient to pass the Iqbal standard of review. In other words,
viewing the new allegations as a whole, Plaintiff has sufficiently articulated her claim
under Count Two, even without inclusion of specific details concerning the
circumstances through which she notified Defendant both of her own PTSD, and that
she sought “accommodation” for her own PTSD rather than merely to care for her
daughter. To the extent that she has cured the facial deficiencies of her state law

7

In the Court’s opinion of June 6, 2012, the presiding district judge dism issed Plaintiff’s state law disability
claim even though Plaintiff had argued that an accom m odation for the purpose of taking care of her
daughter would alleviate Plaintiff’s “own stress and PTSD flare-ups,” (Doc. 34 at 14). The Court noted that
no authority supports an associational theory of disability. Despite som e shortcom ings, Plaintiff’s tendered
second am ended com plaint m ore clearly sets forth a claim relating to her own disability.
13

disability claim in Count Two of the tendered second amended complaint, she also may
pursue a derivative retaliation claim (Count Five) under state law. Similarly, she should
be permitted to add the proposed factual allegations in order to further support the nondismissed (FMLA) portions of Count Four (retaliation) and Count Six.
III. Conclusion and Recommendations
Accordingly, IT IS RECOMMENDED THAT:
1. Defendant’s second motion to dismiss portions of Plaintiff’s first amended
complaint for failure to state a claim (Doc. 36) should be GRANTED in part, to the
extent that all of Count Five (state law retaliation) and portions of Counts Four and Six
should be dismissed from Plaintiff’s first amended complaint. However, Plaintiff’s claim
of FMLA retaliation and of intentional infliction of emotional distress, based upon the
same alleged retaliatory conduct under the FMLA, should not yet be dismissed, pending
further development of the record;
2. Plaintiff’s motion for leave to file a second amended complaint (Doc. 51)
should be GRANTED in part, to the extent that Plaintiff should be permitted to file a
second amended complaint within thirty (30) days, consistent with this Report and
Recommendation, that does not re-assert claims against the Clermont County Board of
Commissioners or renew Plaintiff’s ADA claim;
3. Defendant’s motion to dismiss Plaintiff’s motion for leave to file a second
amended complaint (Doc. 58) is likewise GRANTED in part, to the extent that Plaintiff
should not be permitted to re-assert claims previously dismissed exclusively on legal
grounds;

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4. Except as specifically granted in part herein, the motions of both parties
(Docs. 36, 51, and 58) should be denied.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KRISTAN D. NELSON,

Case No. 1:11-cv-335

Plaintiff,

Weber, J.
Bowman, M.J.

v.

CLERMONT COUNTY VETERANS’
SERVICE COMMISSION, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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