Staples v. Cincinnati, City of

Filing 12

OPINION AND ORDER granting in part and denying in part 5 Defendant City of Cincinnati's Motion to Dismiss. The Court finds that Plaintiff's claims in Counts I through IV survive Defendant's challenge. Plaintiff has raised plausible allegations for unlawful disability and race discrimination, as well as retaliation, in violation of 42 U.S.C. § 1981 and Ohio Rev. Code § 4112. However, the Court finds Plaintiff's remaining claims in Counts V through VII for breach of contract, public policy, and detrimental reliance subject to dismissal. Signed by Judge S Arthur Spiegel on 5/1/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
REGINALD L. STAPLES, Sr.

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Plaintiff,
v.
CITY OF CINCINNATI,
Defendant.

NO:

1:13-CV-00311

OPINION AND ORDER

This matter is before the Court on Defendant City of
Cincinnati’s Motion to Dismiss (doc. 5), and Plaintiff’s Response
in Opposition (doc. 9).

For the reasons indicated herein, the

Court GRANTS in part and DENIES in part Defendant’s motion.
I.

Background
The following facts are taken from Plaintiff’s Complaint,

which for purposes of the Court’s consideration of the instant
motion to dismiss, are considered true:

Plaintiff, an African-

American started his career as a police officer with Defendant
Cincinnati in 1994 (doc. 2).

He served in various capacities over

the years and in 2007 was appointed an Equal Employment Opportunity
(“EEO”) Counselor for the City (Id.).

In such role Plaintiff

investigated allegations of violations of Title VII within the
police

department

(Id.).

Plaintiff

alleges

his

Caucasion

supervisors were not supportive of his role as EEO Counselor (Id.).
In 2008 Plaintiff filed an EEOC Charge against the department,
alleging retaliation against him for his role as EEO investigator

and for disparate treatment (Id.).

That same year Plaintiff began

to suffer health problems and was temporarily placed on light duty
at a desk of the parks unit of the police department (Id.).
On May 28, 2009, Plaintiff requested an ADA accommodation
Plaintiff

in the form of a position as a 911 operator (Id.).

alleges he was suffering from a number of conditions, including
hyperlipidemia and diabetes, which required him to have a clean
work environment to inject prescribed medications (Id.). Plaintiff
alleges that as of 2009, the police department had a long history
of accommodating police officers with ADA conditions to 911operator positions (Id.).
Plaintiff indicates that he was informed in June 2009
that no positions were available (Id.).

Plaintiff continued to

seek a 911-operator position until February 2010 (Id.).

Plaintiff

alleges that during such time period there was a position open for
a 911 operator (Id.).
Plaintiff alleges that on February 5, 2010, the Caucasion
management

of

the

police

department

was

opposing

Plaintiff’s

accommodation to a 911-position, while the City ADA Coordinator
Brenda Dixon recommended that Plaintiff be granted such position
(Id.).

On February 10, Plaintiff alleges he was finally offered a

position, but contingent upon an interview with a seven-person
panel, completion of a ten week keyboarding class, and a typing
test (Id.).

Plaintiff contends due to his health problems it took

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some time for him to complete and pass the typing test, but he
continued to argue he was being treated differently because his
request was taking longer and there were more requirements placed
upon him than similarly-situated Caucasion officers (Id.).
In September of 2010, Plaintiff alleges he was notified
he would be re-assigned to the Impound Unit (Id.).

According to

Plaintiff, such an assignment was commonly given as punishment to
officers who had committed some dereliction of duty (Id.).

On

October 25, 2010, Plaintiff wrote the City Manager Milton Dohoney
complaining that he was not accommodated in the same manner as
Caucasion officers (Id.).

Plaintiff alleges that three Caucasion

officers were assigned as 911 operators in a very short amount of
time, were not subjected to panel review, nor had to complete a
typing

class

and

test

(Id.).

Plaintiff

filed

a

charge

of

discrimination with the Ohio Civil Rights Commission alleging he
was being discriminated against due to a disability (Id.)
The City Manager responded to Plaintiff on February 18,
2011, that Plaintiff was required to test due to new requirements
put in place effective March 10, 2010 (Id.).

Plaintiff alleges

that his request for an accommodation pre-dated such effective
date, his accommodation was delayed because of his still-pending
EEOC

charge,

accommodation

and

he

was

discrimination (Id.).

believed

to

the

dismiss

only

his

way

charge

He dismissed it (Id.).

3

to
of

receive

the

disability

By January 2011 Plaintiff had successfully completed the
keyboarding

class,

panel

interview,

and

typing

test

(Id.).

Plaintiff was offered the position of 911 dispatcher in March of
2011, contingent on completion of training (Id.).

In April 2011

Plaintiff started the six-week training to become an assistant
operator and dispatcher (Id.).

Plaintiff alleges he performed

satisfactorily and he was told he had successfully completed the
class (Id.).

Plaintiff even celebrated with the instructor and

other class members at Red Lobster (Id.).
The following Monday Plaintiff alleges he showed up for
work and was told he was not allowed to touch any equipment (Id.).
By Wednesday the manager of 911 operators, Joel Estes, told
Plaintiff that Plaintiff was not going to be an operator (Id.).
According to Defendant Plaintiff had not passed the written test
(doc. 5).

Plaintiff alleges he was not offered an extended

training period to have successfully completed the class (doc. 2).
Plaintiff further alleges he was given no warning that he might
lose his employment, on June 17, 2011, Plaintiff was informed he
was terminated (Id.).

Plaintiff returned to duty as a police

officer on April 28, 2013, after some time receiving a disability
retirement from the Ohio Police & Fire Pension Fund (doc. 5).
Plaintiff filed his Complaint May 9, 2013, alleging
causes of action for 1) racial discrimination in violation of 42
U.S.C.

§

1981

and

Ohio

Rev.

4

Code

§

4112,

2)

disability

discrimination, 3) retaliation under state law, 4) breach of
contract, 5) wrongful discharge in violation of public policy, and
6) detrimental reliance (doc. 2).

Defendant has filed a motion to

dismiss, contending Plaintiff has no viable claims against the City
(doc. 5).

Plaintiff has responded (doc. 9) such that this matter

is ripe for the Court’s review.
II. Motion to Dismiss Standard
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) requires the Court to determine whether a
cognizable claim has been pled in the complaint. The basic federal
pleading requirement is contained in Fed. R. Civ. P. 8(a), which
requires that a pleading "contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief."
Westlake v. Lucas, 537 F.2d 857, 858 (6th

Cir. 1976); Erickson v.

Pardus, 551 U.S. 89 (20057). In its scrutiny of the complaint, the
Court must construe all well-pleaded facts liberally in favor of
the party opposing the motion.
236 (1974).

Scheuer v. Rhodes, 416 U.S. 232,

A complaint survives a motion to dismiss if it

“contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”

Courie v. Alcoa

Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009),
quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A motion to dismiss is therefore a vehicle to screen out
those

cases

that

are

impossible

5

as

well

as

those

that

are

implausible.

Courie, 577 F.3d at 629-30, citing Robert G. Bone,

Twombly, Pleading Rules, and the Regulation of Court Access, 94
IOWA L. REV. 873, 887-90 (2009).

A claim is facially plausible

when the plaintiff pleads facts that allow the court to draw the
reasonable inference that the defendant is liable for the conduct
alleged.

Iqbal, 129 S.Ct. at 1949.

Plausibility falls somewhere

between probability and possibility. Id., citing Twombly, 550 U.S.
at 557.

As the Supreme Court explained,

In keeping with these principles a court considering a
motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 1950.
The

admonishment

to

construe

the

plaintiff's

claim

liberally when evaluating a motion to dismiss does not relieve a
plaintiff of his obligation to satisfy federal notice pleading
requirements
conclusions.

and

allege

Wright,

more

Miller

than
&

Procedure: § 1357 at 596 (1969).

bare

Cooper,

assertions
Federal

of

legal

Practice

and

"In practice, a complaint…must

contain either direct or inferential allegations respecting all of
the material elements [in order] to sustain a recovery under some
viable legal theory."

Car Carriers, Inc. v. Ford Motor Co., 745

F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood Antitrust
Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright, Miller &

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Cooper, Federal Practice and Procedure, § 1216 at 121-23 (1969).
The United States Court of Appeals for the Sixth Circuit clarified
the threshold set for a Rule 12(b)(6) dismissal:
[W]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind Rule 8 and the
concept of notice pleading.
A plaintiff will not be
thrown out of court for failing to plead facts in support
of every arcane element of his claim.
But when a
complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th
Cir. 1988).
III. Discussion
As an initial matter the Court notes Defendant attacks
Plaintiff’s race discrimination claims as if they were Title VII
claims when in fact Plaintiff alleges violations of 42 U.S.C. §
1981 and Ohio Revised Code § 4112.

Defendant contends Plaintiff

failed to exhaust administrative remedies, though such process is
not required for the claims alleged.

Johnson v. Railway Express,

421 U.S. 454, 460 (1975), Ohio Revised Code 4112.99.
Defendant’s defense on the merits appears to be that it
instituted the testing requirements rule on March 10, 2010, which
applied to all applicants, and so it did not discriminate or
retaliate on any basis against Plaintiff (doc. 5).

Such defense

ignores the simple and plausible theory brought in Plaintiff’s
Complaint: that Caucasion officers were never subjected to the same
requirements that were put into place after Plaintiff made a

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request to become a 911 operator.

The Court is required to take

Plaintiff’s allegations as true and based on his Complaint it can
draw

the

reasonable

inference

that

Plaintiff

was

treated

differently for unlawful reasons.
Plaintiff, having articulated no argument in defense of
his contract theory (Count V), or his detrimental reliance theory
(Count VII), ostensibly has abandoned such claims.

Defendant

contends no contract claim could be raised independently of the
grievance process of the collective bargaining agreement, which
covers Plaintiff’s employment as a union member. Defendant further
contends there is no recognizable tort for detrimental reliance.
The Court finds dismissal of these claims appropriate.
Finally, Plaintiff’s public policy claim (Count VI), is
duplicative of the claims he seeks pursuant to statute.

In Ohio,

the public policy tort is unavailable where there are adequate
statutory remedies. Wiles v. Medina Auto Parts, 96 Ohio St.3d 240,
773 N.E.2d 526 (Ohio 2002), Kolcun v. Nationwide Ins. Co., 2006 WL
1447299, *10 (S.D. Ohio May 24, 2006), and Stange v. Deloitte &
Touche, 2006 WL 871242, *5 (S.D. Ohio April 5, 2006).
IV. CONCLUSION
Having

reviewed

this

matter,

the

Court

finds

that

Plaintiff’s claims in Counts I through IV survive Defendant’s
challenge. Plaintiff has raised plausible allegations for unlawful
disability and race discrimination, as well as retaliation, in
violation of 42 U.S.C. § 1981 and Ohio Rev. Code § 4112.

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However,

the Court finds Plaintiff’s remaining claims in Counts V through
VII for breach of contract, public policy, and detrimental reliance
subject to dismissal.
Accordingly, the Court GRANTS IN PART and DENIES IN PART
Defendant City of Cincinnati’s Motion to Dismiss (doc. 5), as
indicated herein.
SO ORDERED.

Dated: May 1, 2014

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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