Holmes v. Cincinnati, City of
Filing
68
ORDER granting in part and denying in part 63 Motion for Judgment on the Pleadings. Holmes' claims set forth in Counts 4, 8 and 9 of her amended complaint are dismissed with prejudice. All of Holmes' claims against the individual Defen dants Ted Nussman, Eric Ringhauser, Teresa Gilligan, Lisa Berning, and Troye Shirley, are dismissed with prejudice. The claims for racial and disability discrimination and FMLA retaliation, Counts 1, 2, 3, 5, 6 and 7, are dismissed without prejudice and with leave to amend those claims. If she chooses to file a second amended complaint, Holmes shall file that pleading by May 10, 2016. Signed by Judge Sandra S Beckwith on 4/25/16. (mb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Rosalind Holmes,
:
:
:
:
:
:
:
:
:
Plaintiff,
vs.
City of Cincinnati, et al,
Defendants.
Case No. 1:14-cv-582
ORDER
Before the Court is Defendants' motion for judgment on the pleadings pursuant to
Fed. R. Civ. Proc. 12(c). (Doc. 63) Plaintiff opposes the motion (Doc. 65), and
Defendants have filed a reply. (Doc. 67)
Plaintiff Rosalind Holmes filed her pro se complaint in this case against the City
of Cincinnati on July 15, 2014. (Doc. 1) Holmes is an employee of the City, and works
as an accountant in the tax department. She alleges that the City engaged in a pattern
and practice of unlawful race discrimination, disability discrimination, retaliation, and
harassment, in violation of Title VII and the Americans with Disabilities Act. Her
complaint refers to an EEOC charge she filed on November 19, 2012, which was
dismissed by the EEOC on March 4, 2013. She apparently filed a second EEOC
charge on November 20, 2013, which was closed by the EEOC on July 14, 2014.
Holmes further alleges that she complained to Lisa Berning, the Human
Resource Manager, on December 14, 2010; thereafter, Berning and Teresa Gilligan,
former Tax Commissioner, referred Holmes to the Public Employee Assistance
Program. Berning never addressed her complaint. On July 27, 2011, Holmes applied
for a promotion, but was informed she did not satisfy the minimum qualifications of three
years experience as an accountant with the City. Two co-workers were permitted to
apply although they were hired just before Holmes was hired. On October 12, 2012,
Holmes alleges she discovered a letter written to the Director of the Public Employee
Assistance Program, which contained false accusations about her and her health. It is
not clear where Holmes discovered this letter. Her complaint seeks an order requiring
the City to promote her, as well as back pay and compensatory and punitive damages.
The City answered the complaint and raised several defenses. (Doc. 3) Holmes
subsequently retained counsel who filed a notice of appearance on September 18,
2014, and a case calendar order was entered. Holmes, through her attorney, filed an
amended complaint on January 30, 2015 (Doc. 17), within the time provided by the
calendar order. Her amended complaint alleges claims against the City and five
individual City employees (Ted Nussman, Eric Ringhauser, Teresa Gilligan, Lisa
Berning, and Troye Shirley), all of whom are sued both as "agents" of the City and in
their individual capacities. In the amended complaint, Holmes alleges she complained
to Berning on December 14, 2010 about the "rescission of an approved transfer" to a
different position, which was improperly awarded to Ted Nussman's wife, a less
qualified Caucasian-American female. (Doc. 17 at ¶19) Holmes was ordered to
consult the City's Employee Assistance Department as a result of her complaint.
Holmes filed an EEOC claim on November 19, 2012, after which her workload was
altered, resulting in larger accounts being assigned to Holmes.
In July 2011, she was denied a promotion to a senior accountant position
because she failed to satisfy a three-year tenure requirement. She alleges that lesser
-2-
qualified Caucasian-American employees were not impeded from promotions. She
received a negative 2014 performance evaluation, and was denied a salary increase,
actions she alleges were retaliatory and violated the Family and Medical Leave Act
("FMLA"). (Id. at ¶24) She also alleges that a co-worker filed an unfounded complaint
of workplace violence against her on August 14, 2014, for which Nussman issued a
written reprimand to Holmes. She further alleges that "Defendants" and any or all of
them, treated her as disabled in order to preclude her from seeking promotional
opportunities. She alleges that her complaints have been ignored, and that
"Defendants, or any one or more of them," have a history of racial discrimination,
adverse decisions and/or accusations reflecting "knowledge, willfulness and/or
maliciousness regarding unlawful racial discrimination." (Id. at ¶30)
Her amended complaint alleges federal claims under Title VII for race
discrimination (Count 1) and race-based retaliation (Count 2); a Section 1981(a) claim,
alleging Defendants violated her contractual employment rights (Count 3); conspiracy
under 42 U.S.C. §1986 (Count 4); disability discrimination under the Americans with
Disabilities Act, 42 U.S.C. §12112 (Count 5); FMLA retaliation under 29 U.S.C. §2615
(Count 6); and state law claims for racial discrimination (Count 7), intentional infliction of
emotional distress (Count 8), and libel (Count 9). All claims are brought against all
Defendants collectively.
Before any answers were filed to the amended complaint, the parties were
referred to the Magistrate Judge for a settlement conference. (Doc. 32) A May 27,
2015 docket entry states that the parties informed the Magistrate Judge that they had
reached a settlement. A few days later, however, Holmes' attorney moved to withdraw,
-3-
citing irreconcilable differences. (Doc. 38) Holmes responded by asking the Court to
review the settlement to determine whether it was fair, stating that she decided to
revoke the settlement because it was not fair to her. She also requested time to retain
new counsel. (Doc. 39) Counsel's motion to withdraw was granted on June 24, 2015
(Doc. 47), and new counsel entered his appearance on August 4, 2015. (Doc. 50) An
amended calendar order was entered, and the parties were again referred to the
Magistrate Judge for a settlement conference. The Magistrate Judge reported that the
parties were at impasse, and Holmes disclosed an expert witness on December 23,
2015.
On February 22, 2016, all Defendants moved for judgment on the pleadings on
Holmes' amended complaint. (Doc. 63) They argue that the amended complaint is
defective on a variety of grounds, and fails to state a plausible claim for relief against
any of them. They argue that Holmes’ November 19, 2012 EEOC claim is untimely with
respect to any alleged discriminatory or retaliatory conduct that occurred more than 300
days prior to that filing date. The only date Holmes specifically alleges is a December
14, 2010 denial of a transfer, which was more than 300 days before she filed her EEOC
claim. They also argue that her initial complaint in this case was not filed within 90 days
of her receipt of EEOC’s notice of suit rights. Defendants ask the Court to take judicial
notice of that letter which is dated March 4, 2013 (Doc. 63, Ex. G); her original
complaint was filed on July 15, 2014. In addition, Holmes did not allege race
discrimination or retaliation in her EEOC charge, which is a prerequisite to prosecuting
her federal Title VII claims.
Defendants also argue that Holmes’ factual allegations fail to state a plausible
-4-
claim under Title VII, the ADA, the FMLA, and/or Section 1981. Her Section 1986 claim
lacks factual support and is not accompanied by a Section 1985 claim, which is a
prerequisite to Section 1986 relief. Such a claim would be futile in any event. Holmes’
intentional infliction of emotional distress and libel claims under Ohio law are based
entirely on conclusory allegations that fail to allege a plausible claim. Finally, the
individual defendants seek dismissal of all claims against them. Each is sued
individually, and individual employees are not liable under Title VII, the FMLA, or the
ADA, and only injunctive relief claims are cognizable under Section 1981. The
individual defendants are also immune from Holmes’ state law claims (Counts 7-9)
under Ohio Rev. Code 2744.03(a)(6), and she fails to plead any facts bringing her
claims within any of the statutory exceptions to the immunity shield.
Holmes' response (Doc. 65) includes a recitation of facts and events that are
largely missing from her amended complaint. And these factual allegations are not set
forth in an affidavit or a declaration. In any event, Holmes' response memo asserts that
she filed a second EEOC claim on November 20, 2013, for which she received a notice
of suit rights on July 22, 2014. She argues that her original complaint was therefore
timely and that she did exhaust her administrative remedies. She also states that she
was on FMLA leave for "a substantial portion of 2014." (Doc. 65 at 7) She contends
that her pleading is more than sufficient to withstand dismissal under Rule 12(c), and
suggests that Defendants are really seeking summary judgment, given the exhibits
submitted with their motion. She asks the Court to deny Defendants' motion so that she
can engage in discovery that will support her allegations.
A motion for judgment on the pleadings under Rule 12(c) is decided under the
-5-
same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6).
See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). In reviewing such motions,
the Court accepts the well-pleaded factual allegations of the complaint. A claim will
survive if those allegations are “enough to raise a right to relief above the speculative
level on the assumption that all of the complaint's allegations are true.” Jones v. City of
Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008), citing Bell Atlantic Corp. v. Twombly, 550
U.S.544 (2007). Twombly essentially retired Rule 8's permissive “no-set-of-facts”
pleading standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The
Twombly court found that literal application of that standard impermissibly permits
wholly conclusory claims to survive Rule 12 challenges.
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court expressly held that
a complaint will survive a Rule 12 challenge only if its well-pleaded factual allegations
are sufficient to state a claim for relief that is plausible on its face. Facial plausibility
requires pleading facts that permit a reasonable inference that the defendant is liable for
the alleged misconduct. If a complaint pleads facts that are “merely consistent with” a
defendant’s liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at 557).
The Court finds that many of Defendants' arguments are well-taken. Holmes
suggests that she should be permitted to engage in discovery before responding to
Defendants' motion. The Court disagrees. The documents attached to Defendants'
motion are clearly referred to in Holmes' amended complaint, and they form the factual
basis for her allegations. Attaching these materials to the motion does not require the
Court to treat it as one for summary judgment. See Weiner v. Klais & Co., 108 F.3d 86,
-6-
89 (6th Cir. 1997): "[D]ocuments that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff's complaint and are
central to her claim."
With regard to Holmes' racial discrimination claims (Counts 1, 2 and 3), she does
not directly respond to Defendants' argument that she must exhaust her administrative
remedies by filing a claim with the EEOC. Defendants have submitted copies of the
EEOC charges that are referred to in the amended complaint (Doc. 63-1, Ex. G), of
which the Court will take judicial notice. The only charges Holmes made to the EEOC
were claims for disability discrimination and retaliation; there is no mention of racial
discrimination or retaliation. In addition, the EEOC's notice of right to sue on these
charges is dated March 4, 2013. Holmes filed her original complaint in July 2014, over
a year later. That notice states in prominent typeface that Holmes had only 90 days in
which to file a lawsuit based on her EEOC charges. These claims are subject to
dismissal on both grounds, failure to exhaust and untimeliness.
Holmes suggests in her response memo that she filed another EEOC charge, for
which she received a notice of right to sue in July 2014. Out of an abundance of
caution, the Court will permit Holmes to amend her complaint in order to specifically
allege the factual circumstances surrounding this EEOC charge, and to plead more
specifically the facts supporting her claims for racial discrimination.
Holmes' claim for conspiracy under 42 U.S.C. §1986, Count 4, will be dismissed
with prejudice. Defendants correctly argue that there is no free-standing right to
prosecute a claim for conspiracy under Section 1986, because any claim under that
section is contingent upon pleading and proof of a violation of Section 1985. See
-7-
Seguin v. Sterling Heights, 968 F.2d 584, 590 (6th Cir. 1992).
Count 5, Holmes' claim for disability discrimination under the Americans with
Disabilities Act, was raised in her initial EEOC claim, and would also appear to be
untimely for that reason. She suggests in her response that she also alleged disability
discrimination in her second EEOC charge. Given her assertion, the Court will permit
her to amend this claim along with her racial discrimination claims. In addition,
Defendants correctly observe that her amended complaint's allegations regarding
disability are conclusory in nature, and merely recite the elements of a claim under the
ADA. If she chooses to amend this claim, Holmes must particularly allege facts to
support the elements of an ADA discrimination claim.
Count 6 alleges retaliation under the Family and Medical Leave Act. The only
reference in the amended complaint to this issue is in paragraph 24, where Holmes
alleges that she was denied a step increase after her 2014 performance evaluation,
which she suggests was retaliatory because she was unable to meet work quotas due
to an FMLA absence. (Doc. 17 at ¶24) This conclusory allegation does not suffice to
state a plausible claim for FMLA retaliation, and there are no facts pled concerning why
or when she may have applied for FMLA leave, when and why it may have been
granted, and how that leave may be related to either the denial of a step increase or her
2014 evaluation. The Court will grant Holmes leave to amend this claim, but if she does
so she must set forth with sufficient specificity facts that could support a retaliation claim
under the FMLA.
Count 7, her state law discrimination claim, alleges a series of alleged
discriminatory and retaliatory actions. To the extent she is alleging racial or disability
-8-
discrimination/retaliation, she will be permitted to amend this claim along with her
federal claims. Holmes also references violations of workplace rules, or promotions
based on nepotism. (See Doc. 17 at ¶60) Ohio Rev. Code 4112.02 prohibits
discriminatory practices based on race, color, religion, sex, military status, national
origin, disability, age and ancestry. It does not give rise to a claim based on violations
of workplace rules or allegations of nepotism. To the extent that Holmes alleges a claim
based upon those grounds, it fails to state a plausible claim and is dismissed with
prejudice.
Counts 8 and 9, state law claims for intentional infliction of emotional distress and
libel, are dismissed with prejudice. In order to establish a plausible claim for intentional
infliction of emotional distress, Holmes must plead facts giving rise to a plausible claim
that: “(1) that the defendant either intended to cause emotional distress or knew or
should have known that the actions taken would result in serious emotional distress; (2)
that the defendant's conduct was so extreme and outrageous as to go beyond all
possible bounds of decency and was such that it would be considered utterly intolerable
in a civilized community; (3) that the defendant's actions were the proximate cause of
plaintiff's psychic injury; and (4) that the mental distress suffered by plaintiff is serious
and of such a nature that no reasonable person could be expected to endure it.” Smith
v. Redecker, 2010-Ohio-505, at ¶60 (Ohio App. 4th Dist. 2010). Holmes' allegations of
denial of a transfer or a salary increase, or her referral to the Employee Assistance
Department, do not rise to the level of a plausible claim for intentional infliction of
emotional distress. Her conclusory allegations that Defendants "intended" to cause her
distress, or exhibited "reprehensible" conduct, are plainly insufficient.
-9-
Libel, a form of defamation, requires factual allegations plausibly supporting a
claim that the defendant caused the publication of a false written statement about
Holmes to be made to a third party, that was either defamatory per se, or that caused
injury to Holmes' reputation or exposed her to public ridicule or disgrace. The
defendant's conduct must at least amount to negligence in publishing the false
statement. See, e.g., Mehta v. Ohio Univ., 194 Ohio App.3d 844, 855, 2011-Ohio-3484,
¶26 (Ohio App. 2011). Holmes' allegations are merely conclusory, alleging that
"Defendants" injured her reputation or exposed her to public ridicule (see Doc. 17 at
¶68). There are simply no facts pled in her amended complaint that support a plausible
claim for libel. Count 9 is therefore dismissed with prejudice.
Holmes does not respond to the arguments about the individual Defendants. It is
beyond dispute that Individual supervisors are not liable under Title VII, the ADA, or the
FMLA. The only relief that might be available to Holmes under Section 1981 is
prospective or injunctive relief, not money damages against the individual defendants,
and any such relief that Holmes could be entitled to can be awarded against the City.
Holmes also does not respond to the individual Defendants' argument that they are
immune from her state law claims under Ohio Rev. Code 2744.03(A)(6). An exception
to that immunity may exist if the employee acts manifestly outside the scope of
employment, acts with malice, in bad faith, or in a wanton or reckless manner. The
Court agrees that Holmes' allegations against the individual Defendants fail to plausibly
allege a basis for an exception to the immunity granted to them under Ohio law. The
Court grants Defendants' motion with respect to the five individual Defendants.
CONCLUSION
-10-
For all of the foregoing reasons, Defendants' motion for judgment on the
pleadings (Doc. 63) is granted in part. Holmes' claims set forth in Counts 4, 8 and 9 of
her amended complaint are dismissed with prejudice. All of Holmes' claims against
the individual Defendants Ted Nussman, Eric Ringhauser, Teresa Gilligan, Lisa
Berning, and Troye Shirley, are dismissed with prejudice. The claims for racial and
disability discrimination and FMLA retaliation, Counts 1, 2, 3, 5, 6 and 7, are dismissed
without prejudice and with leave to amend those claims.
If she chooses to file a second amended complaint, Holmes shall file that
pleading no later than 14 days from the date of entry of this Order, or by May 10, 2016.
Defendant may answer or otherwise respond to any second amended complaint within
the time provided by the Federal Rules of Civil Procedure and this Court's Local Rules.
SO ORDERED.
DATED: April 25, 2016
s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court
-11-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?