Parson v. Homer et al.

Filing 20

ORDER granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim. Signed by Judge Michael R. Barrett on 9/27/13. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KEN PARSON,

CASE NO.: 1:12CV948

Plaintiff,

Judge Michael R. Barrett

GREG HOMER, et al.,
Defendants.

AMENDED CALENDAR ORDER
This matter is before the Court on Defendants' Motion for Partial Dismissal of
Plaintiffs' Amended Complaint. (Doc. 9). Plaintiff has filed a memorandum in opposition
(Doc. 14), and Defendants have filed a reply (Doc. 18). This matter is now ripe for
review.
I.

BACKGROUND
This case is about a Police Officer for the City of Monroe, Plaintiff Ken Parson

("Plaintiff"), who allegedly suffered from a speech impediment commonly known as
stuttering. Plaintiff had been employed as a police officer with Monroe since March 14,
2001. When he first began working, his speech impediment was not that noticeable. In
March 2007, Plaintiff was assigned to the detective section of Monroe. Several months
later, in or about November 2007, his speech deteriorated substantially, and his
stuttering became very noticeable.
Plaintiff claims that starting in late 2007 after his speech deteriorated, he began
experiencing a wide array of different and harsh treatment from his supervisors and coworkers, including Greg Homer ("Homer"), Bill Brock ("Brock"), Brian Curlis ("Curlis"),
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Frank Robinson ("Robinson"), Dave Chasteen ("Chasteen"), Doug Liest (“Liest"), and
Alicia Beacock ("Beacock"), as well as other Jane or John Does. He also experienced
allegedly wrongful discipline.
Although he had been performing well in the detective section of Monroe with his
stuttering, he was transferred in or about June 2011 to road patrol where he was unable
to perform effectively due to his stuttering. In 2012, he was placed on rotating patrol
that required voice command presence with greater frequency. In July 2012, Plaintiff
was placed on temporary disability.
Plaintiff also alleges he exercised his FMLA rights "at various times in 2008 and
through 2011" for issues relating to his disability, and that he exercised his FMLA rights
in 2010 following his father's death and in 2011 in regards to the birth of his daughter.
In regards to those leaves, Plaintiff contends that he was treated unfairly, that
employees interfered with his leave, and his absences were used against him for
discipline.
On December 9, 2012, Plaintiff filed this lawsuit against Defendants Monroe,
Homer, Brock, Curlis, Robinson, Chasteen, Liest, and Beacock, as well as other Jane or
John Does. On February 25, 2013, Plaintiff filed the Amended Complaint. Plaintiff
asserts six claims for relief.
His first claim for relief is for a hostile work environment and disability
discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, et
seq. against Defendant City of Monroe ("Monroe") and under Ohio Revised Code §
4112, et seq. against Defendants Monroe, Brock, Homer, Curliss, Chasteen, Liest and
Beacock (Doc. 7, p. 11).

2

His second claim for relief is for disability discrimination, failure to accommodate
and hostile work environment in violation of the ADA and Ohio Revised Code § 4112,
et. seq., which he asserts against Monroe, Brock, Homer, Curliss, Chasteen, and
Robinson. (Doc. 7, p. 15).
His third claim for relief is for violation of the Family Medical Leave Act (“FMLA")
against Monroe, as well as Homer, Brock and Robinson in their individual capacities.
(Doc. 7, p. 20).
His fourth claim for relief is for violations of and retaliation under 42 U.S.C. §
1983 against Monroe as well as Brock, Homer, Curliss, Chasteen, Liest, Beacock, and
Robinson in their official and individual capacities. (Doc. 7, p. 22).
Plaintiff’s fifth claim for relief is for retaliation in violation of the ADA, FMLA and
Ohio Revised Code § 4112, et seq. (Doc. 7, p. 27). Plaintiff does not specify against
which Defendants that claim is brought.
Plaintiff's sixth claim for intentional infliction of emotional distress. (Doc. 7, p. 29).
Again, Plaintiff does not specify against which Defendants that claim is brought.
II.

LEGAL STANDARD
Defendants move for dismissal for failure to state a claim for relief under Federal

Rule of Civil Procedure 12(b)(6). 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

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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).
III.

ANALYSIS
In the motion for summary judgment, Defendants address Plaintiff's claims as

follows. First, they address Counts One, Two and Five together because they all seek
relief against Defendants for alleged disability discrimination and retaliation under the
Americans with Disabilities Act and/or Ohio Revised Code § 4112, et. seq. Second,
they address Count Three for alleged violations of the FMLA. Third, they address
Count Four for alleged violations of 42 U.S.C. § 1983. Fourth, they address Count Five
as it relates to retaliation under the FMLA, ADA and § 4112. Finally, they address
Count Six for intentional infliction of emotional distress.

Plaintiff's response also

generally addresses his claims in this order.
1. Official Capacity Claims
Defendants argue that Plaintiff's official capacity claims against the Individual
Defendants are redundant and should be dismissed. Plaintiff does not respond to that
argument.
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Official capacity claims are claims against the entity itself. Kentucky v. Graham,
473 U.S. 159, 165-66, 105 S. Ct. 3099, 87 L. Ed. 2d 144 (1985). Here, Plaintiff has
named the City of Monroe as a Defendant as well as sued the various defendants who
are city employees in their official capacities. 1 Given that the principal entity, the City of
Monroe, is named as a Defendant in this action, the official capacity claims are
redundant. See Bauer v. City of Cincinnati, No. 1:09-cv-46, 2011 U.S. Dist. LEXIS
122872, at *33 (S.D. Ohio Oct. 24, 2011) (dismissing official capacity claim against City
of Cincinnati police chief where the plaintiff had also named the City of Cincinnati as a
defendant); see also A.M.S. v. Steele, No. 1:11-cv-298, 2012 U.S. Dist. LEXIS 79896,
at *25 (S.D. Ohio June 8, 2012) (Litkovitz, M.J.), adopted by, 2012 U.S. Dist. LEXIS
99556 (S.D. Ohio July 18, 2012) (Dlott, J.) (dismissing official capacity claim against city
police chief where the plaintiff had also named the City of Cincinnati as a defendant for
the § 1983 claim).

Accordingly, the official capacity claims against Brock, Homer,

Robinson, Curlis, Chasteen, Leist and Beacock are dismissed.
2. Counts One, Two and Five Regarding Claims Under the ADA and Ohio
Rev. Code § 4112 for Disability Discrimination
A. ADA
Defendants seek dismissal of the ADA claims against all of the Defendants,
except Monroe, on the basis that ADA claims cannot be maintained against supervisors
in their individual capacities. Plaintiff disagrees with Defendants, arguing that although
the Sixth Circuit agrees with Defendants' position, other circuits have permitted personal

1

To the extent Plaintiff may complain that the official capacity suits against the police officers were suits
against the City of Monroe Police Department separate and apart from the City of Monroe, the Court
recognizes prior holdings that provide "[p]olice departments are not sui juris; they are merely sub-units of
the municipalities they serve." Jones v. Marcum, 197 F. Supp. 2d 991, 997 (S.D. Ohio 2002). Thus, they
cannot sue or be sued, and the action may properly be maintained only against the City. See id.

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liability against decision-making employees as "employers" under the ADA, Title VII and
the Age Discrimination in Employment Act of 1967. Plaintiff urges the Court not to
follow the Sixth Circuit's guidance and to instead adopt the interpretations of other
circuits.
The Sixth Circuit has held that "individuals who do not qualify as 'employers'
under Title I of the ADA may not be held personally liable in ADA cases." Satterfield v.
Tennessee, 295 F.3d 611, 616 n. 4 (6th Cir. 2002) (citing Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 807 n.1 (6th Cir. 1999), cert. denied, 530 U.S. 1262, 120 S. Ct.
2718, 147 L. Ed. 2d 983 (2000)); see also Wathen v. GE, 115 F.3d 400, 404 (6th Cir.
1997) (citing caselaw from various circuits that found no individual liability of a
supervisor or employee who does not otherwise qualify as an employer). Thus, in the
Sixth Circuit, in order to obtain the relief in damages Plaintiff seeks, he must show that
the individual Defendants independently satisfy the statutory definition of employer.
Satterfield, 295 F.3d at 616, n.4. 2

Plaintiff has not done so here.

There are no

allegations that plausibly show the individual Defendants independently satisfy the
definition of employer. Rather, his allegations show that those individual Defendants
were merely his co-workers and supervisors.
Although Plaintiff references three cases from the Northern District of Illinois
where the district court found that supervisors could be personally liable for
discrimination as agents of the employer, the Court finds those non-binding cases to be

2

Under the ADA, employer is defined "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, and any agent of such person, except that, for two years following the effective
date of this title, an employer means a person engaged in an industry affecting commerce who has 25 or
more employees for each working day in each of 20 or more calendar weeks in the current or preceding
year, and any agent of such person." 42 U.S.C. § 12111.

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unpersuasive. All of those cases were decided in 1993. See Stzerlecki v. Schwarz
Paper Co., 824 F. Supp. 821, 829 (N.D. Ill. 1993); Vakharia v. Swedish Covenant
Hosp., 824 F. Supp. 769, 784-86 (N.D. Ill. 1993); EEOC v. AIC Security Investigations,
Ltd., No. 92 C 7330, 1993 U.S. Dist. LEXIS 15025, at *29-30 (N.D. Ill. Oct. 21, 1993),
reversed and remanded, 55 F.3d 1276 (7th Cir. 1995). Subsequent to those decisions,
the Seventh Circuit overruled the district courts' interpretation of the ADA, holding that
"individuals who do not otherwise meet the statutory definition of 'employer' cannot be
liable under the ADA." United States EEOC v. AIC Sec. Investigations, 55, F.3d 1276,
1282 (7th Cir. 1995). Likewise, other courts appeared to back away from permitting
"individual capacity" suits against supervisors and co-workers and, instead, began
dismissing those cases, relying on the ADA's "overall language and legislative history in
finding that [the use of the term “agent"] was merely Congress' method for incorporating
the doctrine of respondeat superior into the law." Rivera Rodriguez v. Police Dep't of
Puerto Rico, 968 F. Supp. 783, 785 (D.P.R. 1997) (acknowledging the broad
interpretation of the term “employer", but nevertheless dismissing individual capacity
claims against supervisors). The Sixth Circuit's interpretation is in accord with that trend
and remains binding precedent for this Court.

Therefore, Plaintiff's ADA claims in

Counts One, Two and Five against Brock, Homer, Robinson, Curlis, Chasteen, Leist
and Beacock in their individual capacities are hereby dismissed with prejudice.
B. Ohio Revised Code § 4112, et seq.
Defendants also seek to dismiss Plaintiff's state law disability discrimination
claims against Leist and Beacock. Defendants contend that Ohio law does not impose
liability for discriminatory conduct on non-supervisors.

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Under Ohio law, an individual supervisor or manager may be liable for
employment discrimination. Ohio Rev. Code § 4112; Genaro v. Cent. Transport, Inc.,
703 N.E.2d 782 (1999) ("a supervisor/manager may be held jointly and/or severally
liable with her/his employer for discriminatory conduct of the supervisor/manager in
violation of R.C. Chapter 4112."); Cheek v. Indus. Powder Coatings, Inc., 706 N.E.2d
323 (1999) (holding that "an individual employee, not otherwise deemed to be an
'employer' under the statute, may be individually liable for alleged violations of the
employment discrimination provisions of the Ohio Civil Rights Act, Ohio Rev. Code §§
4112.01(A)(2), 4112.02(A) & 4112.99"). However, "Ohio courts have refused to extend
Genaro to non-supervisory employees." Minnich v. Cooper Farms, Inc., 39 F. App'x
289, 296 (6th Cir. 2002) (citing Hale v. City of Dayton, No. 18800, 2002 Ohio App.
LEXIS 474, at *8 (Ohio App. Feb. 8, 2002); Hoon v. Superior Tool Co., No. 79821, 2002
Ohio App. LEXIS 183, at *14 (Ohio App. Jan. 24, 2002)); see also Edwards v. Ohio Inst.
of Cardiac Care, 868 N.E.2d 721, 734 (Ohio App. 2007) ("[A] co-worker who engages in
discriminatory conduct would not fall within the definition of an employer and,
consequently, may not be held individually liable for his conduct.").
Plaintiff does not argue that Leist or Beacock were supervisory employees, and
indeed, the allegations in his Amended Complaint demonstrate that Leist and Beacock
both were of junior rank to Plaintiff. Although Plaintiff vaguely contends that those two
Defendants had delegated or de facto authority, there is no indication that either Leist or
Beacock had authority to fire, hire, supervise, evaluate or manage Plaintiff in any
respect.

Consequently, even when accepting the facts alleged in the Amended

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Complaint as true, Plaintiff has failed to state a claim against Leist and Beacock under
Chapter 4112 that is plausible on its face.
Plaintiff's "cat's paw" argument does not preclude the dismissal of Leist and
Beacock. "Cat's paw" liability attaches when a biased intermediate employee's actions
are a "causal factor of the ultimate employment action" such that the animus of the
intermediate employee can be attributed to the employer. Staub v. Proctor Hosp., 131
S. Ct. 1186, 1193 (2011) (applying the "cat's paw" theory in light of USERRA but noting
the similarity to employment discrimination laws under Title VII); see also Curry v.
Goodwill Indus. of Ky., Inc., No. 1:11CV-00093, 2013 U.S. Dist. LEXIS 50228, at *19-21
(W.D. Ky. Apr. 8, 2013) (analyzing cat’s paw theory in context of FMLA retaliation
claim).

In other words, this theory imposes liability on the employer for the

discriminatory animus of the intermediate employee, but not on the intermediate
employee himself. Thus, while the conduct of Leist and Beacock may be considered in
determining Monroe's liability, they are not individually liable for any alleged
discriminatory animus.
Accordingly, the disability discrimination claims under Ohio Revised Code § 4112
against Leist and Beacock are dismissed.
3. Counts Three and Five Regarding Claims for Violations of the FMLA
A. Brock, Homer and Robinson
Defendants contend that the FMLA claims against Brock, Homer and Robinson
cannot be sustained because they are public agency employees. Defendants contend
that it is well-settled in the Sixth Circuit that their status as public agency employees

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precludes any personal liability under the FMLA.

(Doc. 9, p. 4) (citing Mitchell v.

Champman, 324 F.3d 811, 825-26, 839 (6th Cir. 2003)).
In response, Plaintiff concedes that Defendants have accurately stated the law
as interpreted by the Sixth Circuit and this Court. Instead, he contends that other circuit
courts and district courts have held that public employees may be held liable in their
individual capacities. (Doc. 14, p. 8). Plaintiff thus seeks to have the Court reject the
Sixth Circuit's holding in Mitchell in favor of the interpretation espoused by other circuit
courts and district courts.
In their reply, Defendants contend that the Sixth Circuit's precedent in Mitchell
controls and that Plaintiff can argue for a contrary interpretation on appeal. (Doc. 19, p.
2).
Having considered the arguments of the parties, the Court declines to reject the
Sixth Circuit's holding in Mitchell, 324 F.3d at 825-26, 839, that public employees cannot
be held individually liable under the FMLA.

Not only is this Court bound by the

controlling circuit law, but Plaintiff has not demonstrated that it would be appropriate to
stray from that precedent in this case. Although since Mitchell other circuit courts and
district courts have interpreted the FMLA to permit individual capacity lawsuits against
public employees, the Sixth Circuit recently has acknowledged that split of authority but
nevertheless continued to follow its holding in Mitchell.

Diaz v. Michigan Dep't of

Corrections, 703 F.3d 956, 961-62 (6th Cir. 2013) (citing Mitchell, 343 F.3d at 825-26,
829) (stating that the appellants' attempt to "bring FMLA claims against state officials in
their individual capacities" fails because "[t]his Circuit has held that public employees
cannot be held individually liable under the FMLA."). Accordingly, pursuant to Mitchell,

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Brock, Homer and Robinson cannot be held liable in their individual capacities under the
FMLA, and those FMLA claims against them must be dismissed.
B. Monroe
Defendants contend that Plaintiff's FMLA claims are subject to a two-year statute
of limitations as set forth in 29 U.S.C. § 2617. Plaintiff does not address the applicable
statute of limitations for his FMLA claims in his response.
Under 29 U.S.C. § 2617(1), "an action may be brought under [the FMLA] not later
than 2 years after the date of the last event constituting the alleged violation for which
the action is brought." However, in the case of an action brought for a willful violation,
"such action may be brought within 3 years of the date of the last event constituting the
alleged violation for which such action is brought." 29 U.S.C. § 2617(c)(2). Defendants
provide no explanation as to why the two-year, instead of the three-year, statute of
limitations is applicable. Given that Plaintiff has alleged that the violations were willful,
the Court finds at this time that it is plausible that the three-year statute of limitations
may be applicable.
Accordingly, at this time, claims arising from conduct for which the last event
occurred prior to December 9, 2009 are time-barred. Any claim based upon a last event
constituting the alleged violation that occurred on or after December 9, 2009 are not
time barred. However, the Court was not asked to, and does not, decide which specific
acts or events are or are not time barred.
4. Count Four Regarding Claims for Violations of 42 U.S.C. § 1983
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must first establish
two elements. First, a plaintiff must allege that a defendant acted under color of state
law. Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (citing Fritz v.
11

Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). Second, a plaintiff must
allege that the defendant's conduct deprived the plaintiff of rights secured under federal
law. Id. After that inquiry, the question is whether the defendants are responsible for
that violation. Doe v. Clairborne Cnty., 103 F.3d 495, 505-06 (6th Cir. 1996).
Here, the parties dispute whether Plaintiff has sufficiently alleged that
Defendants' conduct deprived him of rights secured under federal law, and whether the
defendants are responsible for any alleged violation. Given that the allegation as to a
deprivation of a federally secured right is a threshold inquiry, the Court addresses it first.
A. Federal Right
Defendants argue that Plaintiff's Section 1983 cause of action "consists only of
'threadbare recitals,' conclusory legal statements, sweeping generalizations, and nonspecific assertions of wrongdoing without any identification of the source of his federal
rights." (Doc. 9, p. 8). Defendants contend that those allegations are insufficient to
satisfy Iqbal and Twombly.
Plaintiff responds that Defendants misstate the pleading standard, and that the
correct pleading standard is set forth in Handy-Clay, 695 F.3d at 538-39, 548. Plaintiff
responds that under that standard, he need not allege all of the relevant facts but must
simply provide Defendants with fair notice of the claim and the general grounds upon
which it rests. In his response, Plaintiff also indicates that he is proceeding on an Equal
Protection claim based upon a "class-of-one" theory.
In their reply, Defendants contend that the only federal right identified by Plaintiff
is an Equal Protection "class-of-one" theory, which must be dismissed because such a
claim is not available to public employees like Plaintiff. Defendants also reiterate that

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Plaintiff has not stated any plausible constitutional right or unfair process rising to the
level of plausibility.
As an initial matter, the Court recognizes that the pleading standard set forth in
Handy-Clay is the same as the Court has outlined above in Section II. The Handy-Clay
court simply noted that a district court should not credit the defendants', rather than the
plaintiff's, version of facts on a motion to dismiss because it impermissibly heightens the
plaintiff's pleading requirement at that stage of the litigation. Handy-Clay, 695 F.3d at
548. Nevertheless, the Handy-Clay Court still required that the plaintiff "'state a claim to
relief that is plausible on its face'" and that, if accepted as true, are sufficient to "'raise a
right to relief above the speculative level.'" Id. at 538 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). It further noted
that the complaint must thus "'contain either direct or inferential allegations respecting
all material elements to sustain a recovery under some viable legal theory.'" Id. (quoting
Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007)).
With those standards in mind, the Court turns to whether Plaintiff has sufficiently
alleged a federally secured right of which he was deprived by Defendants. The Court
starts with Plaintiff's alleged deprivation of a federally guaranteed right to Equal
Protection. Plaintiff attempts to proceed on his Equal Protection claim on a "class-ofone" theory. However, equal protection for a class of one is unavailable for public
employees. Enquist v. Oregon Dep't of Agriculture, 553 U.S. 591, 598, 128 S. Ct. 2146;
170 L. Ed. 2d 975 (2008); see also Heike v. Guerva, No. 10-1728, 2013 U.S. App.
LEXIS 5420, at *26-27 (6th Cir. Mar. 18, 2013). As such, the Court agrees with

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Defendants that Plaintiff's Section 1983 based on the deprivation of a right to Equal
Protection must fail.
In the Complaint, Plaintiff also plainly alleges a violation of his Fourteenth
Amendment rights to procedural and substantive due process, although he fails to
specifically refer to that right as a basis for his claim in his response to Defendants'
motion. (See Doc. 7, ¶¶ 176, 200-07). The Court gives Plaintiff the benefit of the doubt
and assumes he has not abandoned that theory. 3 Defendants have not specifically
moved for dismissal as to that violation, and instead have sought generally a dismissal
on the basis that his other allegations are conclusory, sweeping generalizations, and
threadbare recitals. Although the Court agrees that the Section 1983 claim contains
disjointed allegations, the Court finds that Plaintiff has put Defendants on fair notice of a
claim based on violation of procedural and substantive due process rights. He also
provides factual support for those allegations.

While it is possible that the factual

allegations do not state a plausible claim under Section 1983, it is not the Court's
responsibility to specifically identify and analyze any deficiencies when the Defendants
have not done so despite plain assertions by Plaintiff as to alleged violations of his due
process rights.
As to his procedural due process claim specifically, Plaintiff alleges in regards to
his Section 1983 claim that he had property interests in his employment as a detective
and in specific personal property that he was deprived of without an opportunity to be
heard. (Doc. 7, ¶¶ 176, 200, 202, 203, 207). He also provides examples of instances in
which he was not given the opportunity to be heard. (Doc. 7, ¶¶ 200-202). Given that
3

If Plaintiff intends to abandon the theory, then he should follow the appropriate procedures to dismiss his
Section 1983 claim.

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Defendants do not attempt to explain to the Court what the precise deficiencies in those
allegations may be that warrant dismissal, the Court does not opine on whether those
allegations are plausible under the law.
Likewise, as to the substantive due process claims, the Court finds that Plaintiff
made more than conclusory or threadbare allegations as to the deprivation of
substantive due process rights to personal safety in the workplace, to the protections of
the First Amendment protections, and to the protections of the Fourth Amendment.
(See Doc. 7, ¶¶ 201, 204-05). Again, the Court does not opine on whether those claims
are indeed plausible under the law, as Defendants have moved to dismiss based only
on the fact that the allegations are threadbare and legal conclusions, without identifying
any specific allegation that they believe is insufficient or identifying any specific
deficiencies in the pleadings that make his claim not plausible. As such, the Court
proceeds with its analysis as to the procedural and substantive due process rights of
Plaintiff.
However, to the extent that Plaintiff intends to assert any other federally secured
right of which he was deprived, the Court finds that Plaintiff has not sufficiently identified
that right to provide Defendants with fair notice or set forth sufficient allegations to make
plausible a claim that is based upon that right. As such, claims based on any federally
secured other than those identified above are hereby dismissed.
The Court now turns to Plaintiff's specific allegations against the various
Defendants to determine whether he has sufficiently alleged responsibility on the part of
those Defendants.
B. Monroe

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Defendants argue that Plaintiff has failed to state a plausible claim against
Monroe because he has not demonstrated a policy or custom of Monroe that caused
the alleged constitutional violation.
Plaintiff responds that Monroe can be liable based upon the actions of those to
whom policymaking authority has been delegated, including the Chief of Police and the
City Manager. Plaintiff argues that Brock and Homer had unfettered discretion to hire
and fire and to set the terms and conditions of his employment such that a de facto
policy arises when faced with alleged constitutional violations. Plaintiff further argues
that Monroe can be liable based on the inaction of City Council, which had notice of the
conduct and actions but did nothing.
In the reply, Defendants do not respond to those arguments made by Plaintiff.
Governmental entities cannot be held liable for an injury inflicted solely by its
employees or agents unless there is a direct causal link between the governmental
entity's policy or custom and the alleged constitutional tort. Bd. of the Cnty. Comm'rs v.
Brown, 520 U.S. 397, 404 (1997); Monnell v. New York City Dep't of Soc. Servs., 436
U.S. 658, 691 (1978); Cummings v. City of Akron, 418 F.3d 676, 684 (6th Cir. 2005). In
other words, the plaintiff must "show[] that the unconstitutional policy or custom existed,
that the policy or custom was connected to the [government entity], and that the policy
or custom caused his constitutional violation. Napier, 238 F.3d 737, 743 (6th Cir. 2001).
To hold a municipality liable on a theory of inaction, a plaintiff must specifically
establish:

(1) the existence of a clear and persistent pattern of those particular

violations by the municipality's employees; (2) notice or constructive notice on the part
of the municipality; (3) the municipality's tacit approval of the unconstitutional conduct,

16

such that its deliberate indifference in its failure to act can be said to amount to an
official policy; and (4) that the municipality was the "moving force" or direct causal link in
the constitutional deprivation. McCoy v. Bd. of Educ., 515 F. App's 387, 393 (6th Cir.
2013); see also Powers v. Hamilton Cnty. Public Defender Comm'n, 501 F.3d 592, 607
(6th Cir. 2008).
Here, to the extent that Plaintiff seeks to proceed against Monroe based on any
written policies, well-established customs, or the City Council's general inaction, his
claim fails. Plaintiff has not made any allegations relating to an official policy of an entity
or department of Monroe nor has he alleged any facts from which the Court can infer a
well-established custom of any entity or department of Monroe relating to the alleged
constitutional deprivations. As to the City Council's alleged inaction specifically, Plaintiff
has not alleged facts that show the existence of a clear and persistent pattern of
tolerance or acquiescence by City Council of the violation of federal constitutional rights,
as is required to hold Monroe liable for that inaction. Thus, Plaintiff's claims in those
regards cannot survive.
However, Plaintiff has alleged and argued sufficient facts to survive a motion to
dismiss on the single act or decision of an official policymaker. He has explained the
policymaking status of Brock and Homer, which Defendants’ have not contested in their
reply. He further has alleged and argued that they have final policymaking authority in
regards to personnel decisions, and in regards to setting the terms and conditions of
employment, and that they exercised their authority in that regard by taking specific
actions against Plaintiff, including transferring him to road patrol despite medical records
indicating he should not be transferred, making personnel decisions contrary to his

17

interests without providing an opportunity to be heard, engaging in allegedly retaliatory
acts, and deciding not to provide him with sufficient support and backup while on road
patrol, as well as other acts. Defendants have provided no rebuttal argument that such
allegations still are insufficient to hold Monroe liable. Thus, for the purposes of this
Opinion, the Court finds the allegations are sufficient.
As such, the Section 1983 claim, as limited to the federally guaranteed rights of
procedural and substantive due process, remains pending against Monroe based on the
theory of a single act or decision of an official policymaker.
C. Brock, Homer, Robinson, Curliss and Chasteen
Defendants argue that the claims against Brock, Homer, Robinson, Curlis, and
Chasteen must be dismissed because supervisory personnel cannot be liable under
Section 1983 based on allegations of only respondeat superior.

Specifically,

Defendants argue that Plaintiff must, but has not, shown that the supervisor encouraged
a specific incident of misconduct or somehow directly participated it.

Further,

Defendants contend that those Defendants cannot be liable for negligent or reckless
supervision.
Plaintiff responds that his allegations are not based upon respondeat superior
liability but on knowledge, participation, acceptance and toleration of physical or mental
abuse of Plaintiff by each of those five Defendants.
Defendants do not directly reply to Plaintiff's argument.
Having reviewed the parties' arguments and the relevant caselaw, the Court finds
that Plaintiff has alleged sufficient facts at this stage of the litigation to survive summary
judgment on the Section 1983 claim against these Defendants based upon procedural

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and substantive due process claims. The doctrine of respondeat superior does not
apply in Section 1983 lawsuits to impute liability onto supervisory personnel; rather, to
find supervisory personnel liable, a plaintiff must allege that the supervisors condoned,
encouraged, implicitly authorized, approved, or knowingly acquiesced in the alleged
misconduct. Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005). Neither the
acts of one's subordinates nor a mere failure of the supervisor to act are sufficient to
impose supervisory liability. Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004); see
also Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264,
120 S. Ct. 2724, 147 L. Ed. 2d 988 (2000); McIntosh v. Butler Cnty. Children's Servs.
Bd., No. 1:09cv274, 2010 U.S. Dist. LEXIS 78115, at *11-12 (S.D. Ohio Mar. 24, 2010).
Plaintiff has alleged sufficient facts to make it plausible that each of the
Defendants knew of the actions being taken against him, implicitly or knowingly
encouraged the incidents, and/or directly participated in the allegedly unconstitutional
conduct that deprived him of his federally guaranteed rights to procedural and
substantive due process. (See, e.g., Doc. 7, ¶¶, 79-80, 81, 85, 112, 120, 192-93, 194,
200-05, 218).

Accordingly, the claims against those Defendants will not be dismissed

at this stage of the litigation.
D. Leist and Beacock
Defendants argue that there are no specific allegations against Leist and
Beacock that plausibly shows either acted in a manner to deprive Plaintiff of a federally
guaranteed right. Plaintiff provides no response to this argument.
Having considered Defendants' arguments and having reviewed the allegations
in the Complaint, the Court finds that Plaintiff has failed to state a plausible Section

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1983 claim against Leist or Beacock in their individual capacities. Plaintiff identifies no
conduct by Leist in his Section 1983 claim that he alleges violated his constitutional
rights to procedural or substantive due process.

Nor does the sole allegation that

Beacock threw a pen at Plaintiff rise to the level of a plausible claim for deprivation of
his right to procedural or due process. Accordingly, the Section 1983 against Leist and
Beacock are dismissed.
E. Statute of Limitations
Defendants argue that the applicable statute of limitations for claims under 42
U.S.C. § 1983 is two years such that any claims for conduct of Defendants that
occurred prior to December 9, 2010 are time-barred.
Plaintiff responds that the argument is premature because in regards to hostile
work environment claims, if one act that contributes to the hostile work environment
claim arose within the limitations period then the entire duration can be considered,
particularly when the conduct did not cease during the entire period.
In their reply, Defendants argue that the request is not premature, and defining
the period of time for which discovery is permitted is essential to the management of the
case.
The Court finds that Plaintiff's Section 1983 claims are governed by a two-year
statute of limitations. See Nadra v. Mbah, 839 N.E. 2d 829 (2008) (applying Ohio's twoyear statute of limitations set forth in Ohio Revised Code § 2305.10 to Section 1983
claims); see also Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) (state law provides
the statute of limitations, but federal law governs when the limitations period begins to
run). The statute of limitations commences to run when the plaintiff knows or has

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reason to know of the injury which is the basis of his action. Sever, 742 F.2d at 273;
see also Scott v. Ambani, 577 F.3d 642, 646 (2009). Accordingly, the Court finds
Plaintiff's claims prior to December 9, 2010 of which he had reason to know and could
have discovered through the exercise of due diligence are time-barred. The Court,
however, does not opine on which specific acts are subject to the statute of limitations.
5. Counts Four and Five Regarding Retaliation
Defendants argue that the retaliation claims are a hodgepodge of claims brought
under the ADA, FMLA, Section 1983 and Ohio Revised Code 4112. They contend that
for the same reasons set forth as the ADA and FMLA claims, the claim is barred against
individual employees. As to the claim based on Section 1983, Defendants argue that
they are subject to the same deficiencies noted above. Plaintiff provides no response.
Although the Court believes those retaliation claims were encompassed within its
analysis above, it reiterates those findings here given that the retaliation claims were
separately addressed by Defendants. As such, the retaliation claims based on the
ADA, FMLA and Chapter 4112 are dismissed against the individual Defendants in their
individual capacities. The retaliation claims brought under Section 1983 as they relate
to the matters dismissed above also are dismissed. However, the same issues that
remain pending as the Section 1983 claim above also remain pending as to the
retaliation claim brought under Section 1983.
6. Count Six Regarding Claim for Intentional Infliction of Emotional
Distress
A claim for intentional infliction of emotional distress requires plaintiff to show that
(1) defendant intended to cause emotional distress, or knew or should have known that
actions taken would result in serious emotional distress; (2) defendant's conduct was
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extreme and outrageous; (3) defendant's actions proximately caused plaintiff's psychic
injury; and (4) the mental anguish plaintiff suffered was serious. Hanly v. Riverside
Methodist Hosp., 603 N.E.2d 1126 (Ohio 1991). See also Yeager v. Local Union 20,
Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 453 N.E.2d 666, 671
(Ohio 1983). Extreme and outrageous conduct occurs "only where the conduct has
been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community. Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his resentment against the actor,
and lead him to exclaim, 'Outrageous!'" Yeager, 453 NE. 2d at 671.
Here, Plaintiff has not specifically identified the Defendants against which he
seeks to assert this claim, and the Court assumes he intends to assert it against all of
the Defendants. In moving for dismissal, Defendants do not explain why the allegations
are insufficient as to any one Defendant, and instead, generally argue that Plaintiff's
allegations do not show such extreme and outrageous conduct to make any Defendant
liable. However, the Court finds otherwise.
Here, Plaintiff's allegations are sufficient at this stage of the litigation to state a
plausible claim for intentional infliction of emotional distress. As alleged by Plaintiff, the
conduct of Defendants goes beyond mere trivialities, negligence, and hurt feelings.
Instead, Plaintiff has alleged that Defendants knew of his speech impediment and its
severity, his limitations because of the speech impediment, and his concerns relating to
that speech impediment in certain situations, yet they knowingly and intentionally placed
him in dangerous situations without the proper support, ridiculed him and intentionally

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exposed his handicap in front of others, and otherwise engaged in conduct that could
rise to the level of heartless, flagrant and outrageous.

Plaintiff's stuttering became

worse and he was eventually placed on temporary disability by his doctors. While in all
cases it is possible that those allegations may prove to be untrue, at this stage of the
litigation they are sufficient to survive scrutiny. As such, the intentional infliction of
intentional distress claim will not be dismissed.
7. Invasion of Privacy
Although Plaintiff argues that his claim for invasion of privacy should not be
dismissed, Plaintiff has not included any such claim in his Amended Complaint. As
such, that cause of action is not before the Court and it warrants no further discussion.
IV.

CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss (Doc. 9) is GRANTED

IN PART and DENIED IN PART. It is ORDERED that
1. The following claims are DISMISSED:
a. All of the ADA claims against all Defendants, except Monroe.
b. All FMLA claims against all Defendants, except Monroe.
c. All claims under Ohio Revised Code § 4112, et seq. against Leist and
Beacock.
d. Plaintiff's Section 1983 claim against all Defendants based upon the
Equal Protection Clause.
e. Plaintiff's Section 1983 claim based on procedural and substantive due
process against Leist and Beacock.
f. Plaintiff's Section 1983 claim based upon procedural and substantive
due process against Monroe to the extent that claim concerns an
official policy or well-established custom, or the inaction of City
Council.

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g. All official capacity claims against Monroe, Brock, Homer, Robinson,
Curlis, Chasteen, Leist and Beacock.
h. All invasion of privacy claims against all Defendants, as they have not
been raised in the Amended Complaint.
2. The case will proceed on the following claims:
a. The ADA claims against Monroe.
b. The FMLA claims against Monroe.
c. The claims under Ohio Revised Code § 4112, et seq. against Monroe,
Brock, Homer, Robinson, Curlis and Chasteen.
d. The Section 1983 claims based on procedural and substantive due
process, as set forth above, against Monroe, to the extent that claim
concerns an act or decision of a policymaker.
e. The Section 1983 claims based on procedural and substantive due
process, as set forth above, against Brock, Homer, Robinson, Curlis
and Chasteen.
f. The intentional infliction of emotional distress claim against all
Defendants.
IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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