Allgeyer v. Cincinnati City of et al

Filing 14

REPORT AND RECOMMENDATIONS re 12 Defendants' Motion for Judgment on the Pleadings. IT IS RECOMMENDED THAT Defendants' construed motion for summary judgment on Plaintiffs claims 12 be GRANTED IN PART and DENIED IN PART. All claims rel ating to Plaintiffs' 1993 termination, all claims relating to the Citys failure to promote her throughout her employment, and all claims alleging discriminatory terms and conditions of her employment should be dismissed as time-barred except for Plaintiff's "failure to promote" claims alleging race and age discrimination based upon the City's failure to promote Plaintiff to positions for which Plaintiff submitted applications on or after 11/27/2015. Discovery shall conti nue to proceed only on the specified failure-to-promote claims. Additionally, IT IS RECOMMENDED THAT all claims against individual Defendants Black and Kelly, and Plaintiff's hostile work environment claims, be DISMISSED for failure to state any claim. Objections to R&R due by 10/19/2017. Signed by Magistrate Judge Stephanie K. Bowman on 10/5/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY JILL ALLGEYER

Case No. 1:16-cv-1128

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

CITY OF CINCINNATI, et al.,
Defendants.

REPORT AND RECOMMENDATION
On December 6, 2016, Plaintiff, proceeding pro se, filed a motion to proceed in
forma pauperis and attached her tendered complaint against the City of Cincinnati and
two individuals, Harry Black and Georgetta Kelly.

On December 22, 2016, despite

expressing “reservations” based upon Plaintiff’s income level, the undersigned
nevertheless granted her leave to file without payment of the $400.00 filing fee. (Doc.
2).

Thereafter, the Court held a telephonic scheduling conference and set pretrial

deadlines in this case. (Doc.11).
On July 5, 2017, Defendants moved for judgment on the pleadings under Rule
12(c) of the Federal Rules of Civil Procedure. Plaintiff filed a response on July 31,
2017, to which Defendants filed no reply.

The undersigned now recommends that

Defendants’ motion be construed as a motion for summary judgment under Rule 56,
Fed. R. Civ. P., and GRANTED in part and DENIED in part.

1

I.

Background

In her complaint, Plaintiff alleges that during her long employment with the City,
she has been subjected to age discrimination in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”), and to reverse race discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff identifies herself as a
Caucasian female and alleges that she was wrongfully terminated from her employment
(in 1993), has been denied promotion multiple times, and generally has experienced
unequal terms and conditions during her employment. (Doc. 3 at 4). She alleges that
she faces an ongoing or continuing course of discrimination. (Id.)
“Before a plaintiff alleging discrimination under Title VII can bring suit in federal
court, she must satisfy two administrative prerequisites: ‘(1) by filing timely charges of
employment discrimination with the EEOC, and (2) receiving and acting upon the
EEOC’s statutory notices of the right to sue.’” Nichols v. Muskingum College, 318 F.3d
674, 677 (6th Cir. 2003)(quoting Puckett v. Tennessee Eastman Co., 889 F.2d 1481,
1486 (6th Cir. 1989))(other citations omitted). Here, Plaintiff’s complaint asserts that the
EEOC issued a Notice of Right to Sue on September 22, 2016, the same date that she
filed her Charge of Discrimination with that agency. As relief for her grievances in this
Court, she seeks “missing vacation benefits, seven years added to lost retirement
years, and $300,000.” Although Plaintiff attached a copy of the relevant Charge to her
complaint, this Court previously noted that her complaint appears to encompass more
than one EEOC charge, given that another exhibit to her complaint is an earlier “EEOC
complaint” dated August 28, 2015, which lists race and gender and the Lilly Ledbetter
Fair Pay Act of 2009, as the basis for that charge.

2

A third document attached to

Plaintiff’s complaint in this Court is a decision by the Equal Employment Opportunity
Advisory Review Board (“EEOARB”), dated December 19, 2015, that refers to Plaintiff’s
presentation of multiple claims to that administrative body on November 24, 2015. 1
(Doc. 3-1 at 8).
While declining to dismiss any claims on initial screening as time-barred or for
failure to state a claim, the undersigned wrote:
The date of the latest filed EEOC Notice suggests that suit may be timely
for at least one claim, although the underlying allegations and other
documents create some ambiguity as to that issue. 2 Rather than
attempting to resolve the issue in the context of the preliminary review
applicable to claims screened under 28 U.S.C. § 1915(e), the undersigned
will direct the Defendant(s) to file a response. Compare Barnes v. Cable,
2016 WL 3350787 (S.D. Ohio May 3, 2016) (recommending dismissal of
all employment claims as time-barred under 28 U.S.C. § 1915(e), among
other reasons). Because the Defendant(s) will be served with the
complaint, they can clarify which Defendant(s) are Plaintiff’s “employer” in
any answer or response. See generally Wathen v. General Electric Co.,
115 F.3d 400 (6th Cir. 1997).
(Doc. 2 at 2-3) (footnote original).
II.

Analysis

Pursuant to this Court’s scheduling order, motions directed to the pleadings were
due to be filed not later than April 28, 2017.

Although Defendants’ Rule 12(c) motion

was filed without leave of this Court outside of that deadline, Plaintiff did not object. In
the interests of justice, the undersigned has considered the motion as if it had been
timely filed under the Court’s scheduling order. Alternatively, because the motion is not
solely directed to the pleadings but contains matters that can only be considered under
1

The EEOARB is an internal body that helps resolve disputes between the City and its employees. See
e.g., Tenkotte v. City of Cincinnati, 2006 WL 3168937 at *2 (S.D. Ohio Nov. 1, 2006) (discussing the
evidentiary distinctions between an independent EEOC decision and the internal decision of the
EEOARB).
2
Many of Plaintiff’s allegations appear to significantly pre-date the relevant period for filing discrimination
claims. See generally Nichols v. Muckingum College, 318 F.3d 674, 677-678 (6th Cir. 2003); Amini v.
Oberlin College, 259 F.3d 493, 498 (6th Cir. 2001).

3

Rule 56, the motion is timely because it is a dispositive motion. Discovery in this case
remains ongoing, and the deadline for the filing of all dispositive motions does not
expire until February 12, 2018.
A. Consideration of Exhibits Relating to Defendants’ Motion
Defendants have attached multiple pages, totaling 57 pages in all, as exhibits in
support of their motion for judgment on the pleadings. 3

In addition to her 19-page

responsive memorandum, Plaintiff has attached a total of 189 additional pages of
exhibits to be considered in opposition to the Defendants’ motion. 4
In Luis v. Zang, 533 F.3d 619 (6th Cir. 2016), the Sixth Circuit reiterated that
matters outside of the complaint itself, which are not “referred to in the complaint,” may
not be considered in the context of a motion that seeks judgment based solely on the
alleged deficiency of a complaint.

In Zang, this Court had considered an affidavit

attached to a motion to dismiss. The Sixth Circuit noted that such consideration was
improper absent conversion of the motion to one for summary judgment under Rule 56.
A court evaluating a motion to dismiss may, as noted above, consider “the
complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant's
motion to dismiss so long as they are referred to in the complaint and are
central to the claims contained therein.” Kreipke v. Wayne State Univ., 807
F.3d 768, 774 (6th Cir. 2015) (alterations and internal quotation marks
omitted).…
Rule 12(d) of the Federal Rules of Civil Procedure confirms this
conclusion. That rule provides that if, “on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by
3

Although filed on the Court’s docket as a single exhibit (Doc. 12-1), closer review reflects that
Defendants have designated multiple exhibits, referenced in their accompanying memorandum as
Exhibits A-G. For the convenience of the Court and consistency in the record, page references are to the
Doc. 12-1.
4
The first 70 pages of Plaintiff’s Exhibit 1 consist of a copy of Defendants’ motion to dismiss and its
accompanying 57 pages of exhibits. The remaining 119 pages escape any facile categorization or
description, but can be described as a mixture of correspondence, applications for tuition reimbursement
or employment, and unauthenticated documents that purport to be a mixture of City reports and policies.

4

the court, the motion must be treated as one for summary judgment under
Rule 56.”
Id., 833 F.3d at 632.
The undersigned has reviewed the exhibits attached to both Defendants’ motion
and Plaintiff’s response, and concludes that a portion of those documents would be
excluded from consideration if this Court were to limit its scope of review to Rule 12.
See generally U.S. ex rel. Antoon v. Cleveland Clinic Foundation, 978 F.Supp.2d 880,
887–88 (S.D.Ohio 2013) (documents “integral to the complaint” may be considered only
if their “authenticity, validity, or enforceability” is not in dispute). Defendants point out
that the Sixth Circuit has held that “judgment on the pleadings under Fed. R. Civ. P.
12(c) is uniquely suited to disposing of a case in which a statute of limitations provides
an effective bar against a plaintiff's claim.” Filer v. Polston, 886 F.Supp.2d 790, 794
(S.D.Ohio, 2012), quoting Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir.1994) (internal
quotation marks and additional citation omitted).

However, the failure of Plaintiff’s

complaint to detail relevant dates requires consideration of some exhibits that do not
appear to be directly referenced by Plaintiff in her complaint. 5
Although at least some of the documents would be subject to exclusion under
Rule 12(c) standards, it is clear that consideration of otherwise potentially excluded
exhibits is highly relevant to the determination of whether this lawsuit is time-barred.
Moreover, Plaintiff herself has not only fully responded to the Defendants’ motion and
exhibits, but has attached an additional 189 pages of exhibits with her opposition.

5

By way of example, Defendants cite to “Exhibit G,” (Doc. 12-1 at 52-57), which contains the denial of
Plaintiff’s 2009 and 2010 requests for tuition reimbursement. Plaintiff’s pro se complaint does not directly
reference the denial of tuition reimbursement, even though she generally complains about (undated and
undefined) discriminatory treatment, which appears to encompass complaints about the failure of the City
to grant her requests for tuition reimbursement.

5

Instead of excluding exhibits tendered by both parties, the undersigned will convert and
construe Defendants’ motion as one for summary judgment. Accord Stringer v. National
Football League, 474 F.Supp.2d 894, 914 (S.D. Ohio 2007) (construing Defendants’
motion as one for summary judgment, reasoning that “where both parties rely
on matters outside the pleadings, neither party will be surprised or prejudiced by the
conversion to a Rule 56 motion”) (additional citations omitted). Based upon the fact that
Plaintiff has fully responded to Defendants’ arguments and exhibits, no additional notice
is required prior to the Court’s consideration of the motion under Rule 56 standards. 6
See Wysocki v. International Business Machine Corp., 607 F.3d 1102, 1104–05 (6th
Cir. 2010) (decision to convert motion to dismiss to motion for summary judgment
subject to review only for abuse of discretion, with notice of conversion of motion to
opposing party not required unless opposing party likely to be surprised).
B.

Standards of Review

1. Applicable Standard for Summary Judgment
On summary judgment, “a court must view the facts and any inferences that can
be drawn from those facts...in the light most favorable to the nonmoving party.”
Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.2007) (internal
quotation marks omitted). “Summary judgment is only appropriate ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P.
56(c)) (internal quotation marks omitted). “Weighing of the evidence or making

6

If any reviewing court would disagree, the filing of this Report and Recommendation and opportunity to
file objections itself provides sufficient notice.

6

credibility determinations are prohibited at summary judgment-rather, all facts must be
viewed in the light most favorable to the non-moving party.” Id.
Construing facts in the light most favorable to the Plaintiff, however, does not
mean that the court must find a factual dispute where record evidence contradicts
Plaintiff's wholly unsupported allegations. After a moving party has carried its initial
burden of showing that no genuine issues of material fact remain in dispute, the burden
shifts to the non-moving party to present specific facts demonstrating a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The ‘mere possibility’ of a factual dispute is not
enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v.
Allen–Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). The court determines whether
the evidence requires submission to a jury or whether one party must prevail as a
matter of law because the issue is so one-sided. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-252, 106 S.Ct. 2505 (1986).
To demonstrate a genuine issue of fact, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the material facts.... Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348
(citation omitted). “It is the Plaintiff's burden to point out record evidence to support her
claims.” Thomas v. National College of Virginia, Inc., 901 F.Supp.2d 1022, 1029 (S.D.
Ohio 2012) (additional citations omitted).

7

2. Alternative Standard for Motion To Dismiss
Even though the undersigned has construed Defendants’ motion primarily as
arising under Rule 56, a portion of Defendants’ motion is properly limited to the
allegations of the complaint. To the extent that portion of the motion falls within the
scope of Rule 12, the standard of review under Rule 12(c) is the same as the standard
for a motion to dismiss under Rule 12(b)(6).
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of
the claims. The court is required to construe the complaint in the light most favorable to
the Plaintiff, and accept all well-pleaded factual allegations in the complaint as
true. See Lewis v. ACB Business Services, 135 F.3d 389, 405 (6th Cir. 1998).
However, a complaint must contain either direct or reasonable inferential allegations
that support all material elements necessary to sustain a recovery under some viable
legal theory. Id., 135 F.3d at 406 (internal citations omitted).

“While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)(citations omitted); Association of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007). In Ashcraft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937 (2009), the Supreme Court further explained: “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.” Id. at 1949. Under Iqbal, a trial
court must cipher out “[t]hreadbare recitals of the elements of a cause of action,

8

supported by mere conclusory statements” from legal conclusions that are supported by
factual allegations. Id.
C. Merits of Defendant’s Motion
1. Time-Barred Claims Under Title VII and the ADEA
Plaintiff’s initial pleading is captioned as a “Complaint For Employment
Discrimination.” (Doc. 3 at 1). The complaint asserts jurisdiction exclusively under Title
VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment
Act of 1967 (“ADEA”). 7 (Doc. 3 at 3).

In her complaint, Plaintiff asserts that her

employer has discriminated against her under Title VII and/or the ADEA in three ways:
(1) by terminating her; (2) by failing to promote her; and (3) by subjecting her to unequal
terms and conditions of employment. (Doc. 3 at 4).
As a prerequisite to suit under either Title VII or the ADEA, a claimant must
exhaust her administrative remedies. Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d
367, 379 (6th Cir. 2002). Defendants argue that all of Plaintiff’s claims fail as a matter
of law, because she failed to file her claims with the EEOC within 300 days of the
alleged discriminatory acts. 8

Having reviewed all relevant exhibits submitted by both

parties, the undersigned agrees that Defendants have shown that the applicable statute
of limitations bars most – but not all – of Plaintiff’s claims.

7

Plaintiff has left those questions seeking the assertion of jurisdiction under any other federal or state law
blank.
8
Under Title VII, a complainant must file a charge with the EEOC within 180 days of the alleged
discriminatory conduct, or 300 days if the plaintiff notifies a parallel state agency of her charge. 42 U.S.C.
§ 2000e-5; 29 U.S.C. § 626(d)(1). Although Plaintiff’s EEOC charge states on its face that the “charge
has not been dual filed with the Ohio Civil Rights Commission,” (Doc. 3-1 at 1), Defendants’ motion does
not seek to enforce the shorter 180 day period. See generally Buckner v. Montgomery County Jobs and
Family Serv. Div., 2012 WL 786948 at *4 (discussing whether 300 day period applies on the basis of
Ohio’s status as a deferral state with a work sharing agreement between the OCRC and EEOC).

9

Plaintiff filed the EEOC Charge identified in her Complaint on September 22,
2016. (Doc. 3-1). Counting back 300 days, any discriminatory acts that occurred prior
to November 27, 2015 would be time-barred under Title VII and the ADEA. Even on its
face, Plaintiff’s complaint makes clear that most of the events of which she complains
occurred not mere days, but years prior to November 2015. For example, she alleges
in part:
In 1993, after three years of full time work with and through the City, I was
replaced and lost my job…. I received no benefits those three years I
worked…. I reentered City service in 2000.
(Doc. 3 at 5). The relief section of her complaint contains additional allegations that
suggest that Plaintiff seeks redress for lingering effects of claims that arose years ago:
I want seven years of vacation seniority, legal liability for O.R.C. 9.44 for
three years of missing vacation benefits, seven years added to lost
retirement years, and $300,000. I should never have lost my job with the
City years ago. …Most of my current promotional applications are thrown
out over at HR. Not one interview. I have three degrees received in 2000
and 2010. The City has changed promotional rules, budget rules and Civil
Service rules all of which does not lend to equal opportunity…. After
leaving all of my positions through promotions with the City, minority
women who replaced me, were given two to three classifications above
me for the same work. Discrimination comes in many forms. The City
now gives promotional tests without showing results and with no study
guides for my administrative series path. Minority women are promoted
regularly through Civil Service by transfers, temporary promotions, or are
put in and promoted in unclassified positions that often break Civil Service
rules and ORC administrative rules.
(Doc. 3 at 6).
Copies of the September 22, 2016 EEOC Charge and the Notice of Plaintiff’s
Right to Sue that underlie Plaintiff’s federal complaint are attached as one of several
exhibits to the complaint. In her EEOC Charge, Plaintiff alleges:
I am 65 years old Caucasian. The city discharged me from a temporary
position which caused me a lost [sic] in pay, benefits and retirement. I
10

was rehired in 2000 and have been subjected to unfavorable
terms/conditions of employment with regards to tuition reimbursement,
promotion, retirement and wages. I complained through the City of
Cincinnati EEO Board. On February 23, 2016, Harry Black (African
American), City Manager, recommended the Human Resource
Department deny my complaint.
(Doc. 3-1 at 1).
Another exhibit to Plaintiff’s complaint is a document entitled “Equal Employment
Opportunity Complaint” dated August 28, 2015, which lists the basis of discrimination as
race, gender, and the “Lilly Ledbetter Fair Pay Act of 2009.” In that document, Plaintiff
lists the dates of alleged discriminatory incidents as “October 1990, July 1993, October
2000, April 2002, and July 2004, but states “[s]ee attached for additional dates.” (Doc.
3-1 at 3). All alleged discriminatory events complained of in the August 28, 2015 EEO
complaint occurred before November 27, 2015.
Returning to the allegations in Plaintiff’s complaint in this Court, it is clear that the
“termination” of which Plaintiff complains, along with her related claims for lost
retirement benefits, refer to a 1993 event.

All such claims are time-barred. Similarly

time-barred are any “failure to promote” claims that relate to job applications or
promotion opportunities that Plaintiff was denied prior to November 27, 2015, and/or to
“unequal terms and conditions” of Plaintiff’s employment.
As previously noted, the issue of the timeliness of Plaintiff’s claims was difficult to
determine on initial screening due in part to the failure of Plaintiff to provide specific
dates for many of her allegations. For example, without reference to any time period
during which she believes she should have earned such benefits or when such benefits
were denied to her, Plaintiff’s complaint sought “seven years of vacation seniority, three
years of missing vacation benefits, [and] seven years added to lost retirement years….”
11

(Doc. 3 at 6). Also without reference to specific dates, she complains of discriminatory
changes to “promotional rules, budget rules and Civil Service rules,” and generally of
disparate treatment insofar as “[m]inority women are promoted regularly” while Plaintiff
has been denied promotions. (Id.)
Defendants’ motion clarifies the record by attaching exhibits that definitively show
that nearly all actions of which Plaintiff complains, including but not limited to events that
purportedly created unequal terms and conditions of employment, occurred in 2000,
2002, 2004, 2007, 2009, and 2010. Many of Plaintiff’s complaints rest on allegations
that other employees were allegedly paid more for identical work, but those events also
occurred many years ago, in 2000, 2002, 2004 and 2007. Other allegations relate to
alleged harassment by supervisors in 2002 and 2007. In fact, some of the most recent
events of which Plaintiff complains - denials of her requests for tuition reimbursement –
still occurred years ago, in 2009 and 2010.
Plaintiff’s response in opposition to Defendants’ motion and her own
accompanying exhibits only serve to reinforce that her claims are time-barred nearly in
their entirety. None of Plaintiff’s arguments or exhibits provide any factual or legal
support to save from dismissal the multitude of claims that she bases upon events that
occurred prior to November 27, 2015.
Despite the vast majority of Plaintiff’s claims being time-barred, the undersigned
cannot recommend that judgment be entered in favor of the Defendants on every claim,
because genuine issues of material fact remain at this very early stage of litigation as to
whether a small portion of Plaintiff’s “failure to promote” claims fall within the requisite
limitations period. Defendants assert that Plaintiff’s failure to promote claims are overly

12

conclusory because she “merely states she has ‘submitted 40 applications’ and has not
had an interview. (Doc. 12 at 10). The Defendants maintain, based upon the exhibits
that Defendants have submitted, that Plaintiff completed just five applications within the
requisite 300 day time period prior to filing her EEOC charge, citing “Exhibit F.” (Doc.
12-1 at 46-50). 9 Without providing this Court with a specific page citation to admissible
evidence, Defendants assert that Plaintiff was advised that she was treated the same as
every other administrative technician. (Doc. 12 at 10). 10
Contrary to Defendants’ arguments, I conclude that Plaintiff has adequately
asserted that she was subjected to race and/or age discrimination for the five
applications for promotion that Plaintiff submitted after November 27, 2015. Even postIqbal, Rule 8 requires only “notice pleading.” Under Rule 8 standards and in the
absence of more definitive evidence under Rule 56 that would entitle the Defendants to
judgment as a matter of law, Plaintiff’s denial-of-promotion claim may continue to
proceed, although without prejudice to any future motion that may be timely filed by
Defendants after additional discovery. 11
In her response in opposition to the Defendants’ arguments that most of her
claims are time-barred, Plaintiff points to various exhibits attached to her complaint,
including correspondence relating to her internal Equal Opportunity Advisory Review
Board (“EEORB”) proceedings, an internal body that is distinct from the EEOC or
9

In addition to the difficulty of cross-referencing the electronic record of Exhibit 12-1 to Defendants’
alphabetical references to exhibits, the Court’s review has hampered by the failure of Defendant to
include any pinpoint citations at all to the exact pages of its referenced exhibits, most of which were
multiple-page documents. The Court expects clearer citations to the record in any future Rule 56 motion.
See generally Rule 56(c)(1)(requiring citation to “particular parts of materials in the record.”)
10
It is possible that Defendants are referring to the conclusion that a “representative number of white
females” filled similar positions, (Doc. 12-1 at 16), but no citation to law has been provided that would
suggest that the EEOARB’s internal decision is in any way binding upon this Court.
11
Defendants admit that Plaintiff submitted five applications for promotion during the requisite time period.
(Doc. 12-1 at 46-50).

13

OCRC. Plaintiff alleges that “[t]his lawsuit is in direct response to the City’s EEOARB
hearing synopsis and other ongoing discriminating issues….” (Doc. 13 st 1).

The

undersigned concludes as a matter of law that neither the EEOARB decision, Defendant
Kelly’s recommendation following that decision, nor Defendant Black’s approval of the
recommendation (essentially taking no further action) is an “adverse employment
action” that would constitute a triggering event and resurrect the otherwise untimely
historical claims that underlie the EEOARB proceedings.
As another route around the procedural bar, Plaintiff points out that in her prior
communications with the EEOARB, she cited the Lilly Ledbetter Fair Pay Act of 2009.
However, that reference does not save Title VII and ADEA claims (the only claims set
forth in the complaint) from dismissal by this Court, even assuming the Fair Pay Act
would be retroactive to the long-ago events of which Plaintiff complains.

Accord

Morrow v. L & L Products, Inc., 945 F. Supp.2d 835, 848 (E.D. Mich. 2013)
(distinguishing claims based upon discrete discriminatory acts that resulted in a pay
decrease from discriminatory compensation acts covered under the Fair Pay Act); see
also generally Ector v. Potter, 2010 WL 1433311 at n.6 (S.D. Ohio April 5, 2010) (Lilly
Ledbetter Act would not apply before its stated retroactivity provision of May 28, 2007);
Squires v. City of Detroit, 2011 WL 2143116 at n.4 (E.D. Mich. May 10, 2011)
(explaining that the Lilly Ledbetter Fair Pay Act applies only to wage and salary
compensation, with no application to pension related claims).

Plaintiff’s vague

references to additional federal laws in some of the exhibits attached to her federal
complaint, including the Pregnancy Discrimination Act of 1978 and the Uniformed

14

Services Employment and Reemployment Rights Act, (see Doc. 3-1 at 4), similarly fail
to state any viable claim that would not be time-barred.
2. Individual Defendants Subject to Dismissal
The undersigned also finds persuasive the Defendants’ argument that City
Manager Harry Black and Human Resources Director Georgetta Kelly are entitled to
dismissal of all claims filed against them. Even if those Defendants’ administrative
actions following the EEOARB decision constituted any type of adverse employment
action (contrary to the undersigned’s conclusion), neither Title VII nor the ADEA provide
for individual liability of supervisors who do not meet the definition of an “employer.”
See Hiler v. Brown, 177 F.3d 542, 546 (6th Cir. 1999).

For that reason, both

Defendants Black and Kelly are entitled to dismissal of all claims.
3. Iqbal Standard Under Rule 12
Finally, the Defendants alternatively argue that – to the extent any reviewing
court would construe Plaintiff’s complaint as alleging an ongoing Hostile Work
Environment claim or other generic unequal “terms and conditions” claim - Plaintiff’s
complaint is subject to dismissal as overly conclusory and for failure to plead sufficient
facts to entitle her to relief. In support, Defendants claim that “there is no mention of
even which protected class covered by Title VII is at issue.” (Doc. 12 at 9).
The undersigned disagrees in part, because the face of Plaintiff’s complaint
clearly identifies Plaintiff as alleging both race and age discrimination. (Doc. 3 at 4).
Additionally, the body of her complaint, together with the attached exhibits, make clear
that she is alleging reverse race discrimination, insofar as she alleges that she has been
treated less favorably than African American employees.

15

Still, to the extent that Plaintiff complains of long-ago events to support her
“hostile work environment” claim, those events remain insufficient as a matter of law to
state any such claim, because the allegations concern discrete events that are timebarred, which fail to state any type of “continuing violation.” See, e.g., E.E.O.C. v.
Kaplan Higher Educ. Corp., 790 F. Supp.2d 619, 625 (N.D. Ohio 2011) (holding series
of discrete employment actions cannot be linked together to form a continuing violation
or a claim of hostile work environment. On that basis, all such claims are subject to
dismissal.
III.

Conclusion and Recommendation

Accordingly, IT IS RECOMMENDED THAT Defendants’ construed motion for
summary judgment on Plaintiff’s claims be GRANTED IN PART and DENIED IN PART.
All claims relating to Plaintiffs’ 1993 termination, all claims relating to the City’s failure to
promote her throughout her employment, and all claims alleging discriminatory terms
and conditions of her employment should be dismissed as time-barred except for
Plaintiff’s “failure to promote” claims alleging race and age discrimination based upon
the City’s failure to promote Plaintiff to positions for which Plaintiff submitted
applications on or after November 27, 2015.

Discovery shall continue to proceed only

on the specified failure-to-promote claims. Additionally, IT IS RECOMMENDED THAT
all claims against individual Defendants Black and Kelly, and Plaintiff’s hostile work
environment claims, be DISMISSED for failure to state any claim.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY JILL ALLGEYER

Case No. 1:16-cv-1128

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

CITY OF CINCINNATI, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and 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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