Brunson v. Montgomery County

Filing 26

REPORT AND RECOMMENDATIONS: 1) Motion to Withdraw Plaintiff's Pro Se Proposed Amended Complaint and Leave to File Amended Complaint 23 be granted, in part, and Plaintiff's proposed Amended Complaint 24 be accepted as filed with the exc eption of Count III, which should be dismissed; 2) Defendant's Motion to Dismiss 9 be denied as moot; and 3) Plaintiff's pro se Motion for Leave to Amend 12 be denied as withdrawn and moot. Objections to R&R due by 8/17/2017. Signed by Magistrate Judge Sharon L. Ovington on 8-3-17. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

CLARK BRUNSON, JR.,
Plaintiff,
vs.
MONTGOMERY COUNTY, et al.,
Defendants.

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Case No. 3:16-cv-00368
District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1
Plaintiff Clark Brunson, Jr. initially filed this case pro se and in forma pauperis
asserting claims of discrimination and retaliation against Defendant Montgomery County,
Ohio. Plaintiff claimed, in part, that Defendant terminated his employment in retaliation
for his opposition to various alleged acts that Defendant, or its employees, committed in
violation of federal and state law. In response, Defendant Montgomery County filed a
Motion to Dismiss for failure to state a claim upon which relief can be granted (Doc. #9),
which Plaintiff opposed. (Doc. #11). Plaintiff also filed a Motion for Leave to Amend
Complaint and a Proposed Amended Complaint (Doc. #s 12, 14), which Defendant
opposed (Doc. #17).
In January 2017, Plaintiff secured representation by counsel, who entered his
appearance. On April 28, 2017, Plaintiff—through his newly retained counsel—filed a

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Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendations.

Motion to Withdraw Plaintiff’s Pro Se Proposed Amended Complaint and Leave to File
Amended Complaint (Doc. #s 23, 24). Defendant2 opposes allowing Plaintiff to amend
his Complaint on two main grounds: (1) There has been undue delay caused by
Plaintiff’s filing his most recent Motion to Amend Complaint, resulting in prejudice to
Defendant; and (2) permitting Plaintiff to amend his complaint would be futile because
his proposed amended complaint fails to cure the factual deficiencies in his original
complaint.
Delay and Prejudice: There was a delay of eight months from the date Plaintiff
filed his original complaint (8/30/2016) and the date he filed his second proposed
amended complaint 4/28/2017). Delay alone, however, does not constitute a valid basis
for denying a motion to for leave to amend a complaint. See Dana Corp. v. Blue Cross &
Blue Shield, 900 F.2d 882, 888 (6th Cir. 1990); see also Bridgeport Music, Inc. v.
Dimension Films, 410 F.3d 792, 805 (6th Cir. 2005). The delay must prejudice the
opposing party. Dana Corp., 900 F.2d at 888. Prejudice may arise when adding a new
claim to a complaint would “require the opponent to expend significant additional
resources to conduct discovery and prepare for trial; significantly delay the resolution of
the dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction.”
Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994). “The longer the period of an

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Defendant’s Response in Opposition refers to itself as both a single Defendant and multiple “County
Defendants.” (Doc. #25, PageID #253). This Report uses the singular “Defendant” because Plaintiff has
not been granted leave to amend his pro se Complaint and Montgomery County is the only Defendant
presently involved in this case.

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unexplained delay, the less will be required of the nonmoving party in terms of showing
of prejudice.” Id. (citation, quotation marks, and brackets omitted).
The delay in the present case is partly explained by the fact that Plaintiff was not
able to retain counsel until nearly five months after he filed his original pro se complaint.
His retained counsel understandably needed time to assess how to proceed and whether to
add to, or subtract any claims from, Plaintiff’s complaint. Given the potentially detailed
factual underpinnings and the need for close attention to a large body of statutory and
case law, Plaintiff’s counsel did not take an unreasonable amount of time in doing so. It
is, moreover, vastly preferable to have all parties represented by counsel in order to
promote efficient and just case management. And, Defendant does not contend, and the
record does not indicate, that any delay was caused by alleged misconduct or bad faith by
Plaintiff.
Defendant argues that prejudice exists because the second proposed amended
complaint adds two new federal claims (FMLA and ADA claims3), state-law claims of
discrimination and retaliation, plus three new party defendants. The new claims,
according to Defendant, do not relate back to the facts set forth in the original complaint.
Defendant further contends that it was not given notice of these new claims, which
invoke different defenses and different potential relief for Plaintiff. Defendant concludes
that having to litigate these new claims against new defendants nine months into the
lawsuit is both prejudicial and imposes an undue burden on Defendant.

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Referring to the Family Medical Leave Act of 1993, as amended, 29 U.S.C. § 2601, et seq., and the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq.

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Defendant’s contentions do not demonstrate that it will suffer prejudice if Plaintiff
is given leave to amend his complaint. The parties have not yet engaged in any formal or
meaningful discovery, and the parties have thus far focused their resources on litigating
the adequacy of Plaintiff’s complaint and proposed amended complaints. There is,
moreover, no impediment hindering Defendant from presenting any different defenses to
Plaintiff’s proposed new claims or from otherwise litigating this case. For example,
Defendant presently offers meaningful contentions concerning the futility of allowing
Plaintiff to file his proposed amended complaint. Given Defendant’s ability to challenge
Plaintiff’s second proposed amended complaint on futility grounds, no prejudice is
imposed on Defendant’s ability to seek dismissal of Plaintiff’s pleadings or to further
litigate this case if conducting discovery and additional proceedings become necessary.
Cf. Siegner v. Township of Salem, 654 F. App’x 223, 228 (6th Cir. 2016) (“Allowing an
amendment after discovery is closed and summary judgment motions are ‘fully briefed’
imposes significant prejudice on defendants.”).
Futility: Without a showing of prejudice, Defendant turns the Court’s attention to
the potential of futility defeating Plaintiff’s second proposed amended complaint.
Defendant contends that two of the proposed party defendants—Montgomery County
Human Resources Department and Montgomery County Environmental Services—are
not legal entities and, therefore, are not capable of being sued (i.e., not sui juris).
Leave to amend a complaint is “freely given as just so requires.” Fed. R. Civ. P.
15(a); see Miller v. Admin. Office of Courts, 448 F.3d 887, 898 (6th Cir. 2006). When a
proposed amendment to a complaint would be futile, such as when it would not withstand
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a Rule 12(b)(6) motion to dismiss, denial of leave to amend is warranted. See
Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir. 2005); see also
Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041 (6th Cir. 1991); Burgess v.
Fischer, 766 F.Supp.2d 845, 849 (S.D. Ohio 2010) (Rose, D.J.).
The cases upon which Defendant rests its sui-juris contention concern, in part,
certain county entities in Ohio that were found to be sui juris. E.g., Marin v. Cleveland
Clinic, et al., 1:09cv2090, 2010 WL 359699, at *4-*5 (N.D. Ohio 2010). Defendant,
however, overlooks that Plaintiff’s proposed amended complaint in the present case
identifies Montgomery County Environmental Services as Plaintiff’s “direct employer.”
(Doc. #24, PageID #200, ¶2). It might well turn out that this county entity or one of the
other county defendants fit the definition of Plaintiff’s “employer” under Title VII, the
ADA, or the FMLA. It is too early to say, however, at the pleadings stage for the reasons
set forth in the thorough discussion in one case Defendant cites, Black v. Hamilton
County Public Defendant Comm’n, et al., No. 1:12cv503, 2013 WL 684394, at *4-*6)
(S.D. Ohio 2013) (Litkovitz, M.J.), Report and Recommendation adopted, 2013 WL
1155253, at *1 (S.D. Ohio 2013) (Dlott, C.J.). As in Black, it is unclear at present which
of the county defendants was Plaintiff’s “employer” for purposes of his Title VII, ADA,
FMLA, and state-law claims, although one of them doubtlessly was in light of Plaintiff’s
well-pled factual allegations.
Defendant next contends that permitting Plaintiff to amend his complaint would be
futile because it would not withstand a Rule 12(b)(6) motion to dismiss for failure to state
a claim upon which relief can be granted.
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“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks and citations omitted). This
does not demand “detailed factual allegations,” but the complaint must contain “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Mere labels
and conclusion are likewise insufficient. Id. “A complaint 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.; see Agema v. City of
Allegan, 826 F.3d 326, 331 (6th Cir. 2016).
“Title VII … prohibits employers from ‘discriminat[ing] against ... [an] employee
... because [the employee] has opposed any [unlawful] employment practice, or because
[the employee] has made a charge’ that the employer has engaged in an unlawful
employment practice.” Yazdian v. ConMed Endoscopic Tech., Inc., 793 F.3d 634, 644
(6th Cir. 2015) (quoting, in part, 42 U.S.C. § 2000e–3(a)).
Defendant challenges Plaintiff’s Title VII retaliation claim as lacking requisite
factual allegations demonstrating that (1) Plaintiff opposed conduct that would in
actuality be deemed unlawful under Title VII, and (2) Plaintiff had a reasonable goodfaith belief that he opposed conduct unlawful under Title VII. These contentions lack
merit.
At this stage of the case, Plaintiff does not need to allege facts showing he
opposed conduct that would in actuality constitute a violation of Title VII. Rather, to fall
under Title VII’s protection from retaliation, Plaintiff must allege facts sufficient to show
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that “he challenged an employment practice that he reasonably believed was unlawful.”
Yazdian, 793 F.3d at 645; see Johnson v. University of Cincinnati, 215 F.3d 561, 579-80
(6th Cir. 2000) ( “a violation of Title VII's retaliation provision can be found whether or
not the challenged practice ultimately is found to be unlawful.”). Taking as true the facts
in Plaintiff’s proposed amended complaint, he describes circumstances sufficient to show
his reasonable belief that Defendant engaged in conduct that was unlawful under Title
VII. He alleges that he pursued two grievances (in July and October 2013) concerning
Defendant’s purported discriminatory hiring practices related to his applications for
several jobs, including the position of Crew Leader 1. Plaintiff is African-American. He
alleges that he was a qualified candidate for these jobs but was not considered for them
and encountered ambiguous hiring qualifications. Among several grievances Plaintiff
filed concerning alleged harassment and bullying, he filed two grievances in August 2014
alleging harassment, racial discrimination, bullying, and retaliation. Assuming Plaintiff
was forced to endure the misconduct alleged in his proposed amended complaint and
attached grievances, rational grounds existed for him to believe in good faith that
Defendant engaged in discriminatory conduct. Additionally, in late August 2014 and in
March 2015, Plaintiff filed charges of race discrimination with the Ohio Civil Rights
Commission. Plaintiff’s grievances and his OCRC charges constituted activity protected
by Title VII. Johnson, 215 F.3d at 579 (“The Equal Employment Opportunity
Commission … has identified a number of examples of ‘opposing’ conduct which is
protected by Title VII, including complaining to anyone (management, unions, other
employees, or newspapers) about allegedly unlawful practices ….”); see E.E.O.C. v. New
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Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (“We agree with the EEOC that a
complaint to a harassing supervisor qualifies as protected activity”; “[t]he opposition
clause protects not only the filing of formal discrimination charges with the EEOC, but
also complaints to management and less formal protests of discriminatory employment
practices.”). For these reasons, Plaintiff’s proposed amended complaint plausibly
describes his good-faith opposition to alleged activities made unlawful by Title VII.
Defendant next contends that the proposed amended complaint fails to set forth
facts showing that he suffered from a serious health condition entitling him to FMLA
leave or that he had FMLA leave available to him.
To state a violation of the FMLA, Plaintiff must allege facts showing “that: (1)
[he] was an eligible employee, (2) the defendant was an employer as defined under the
FMLA, (3) [he] was entitled to leave under the FMLA, (4) [he] gave the employer notice
of [his] intention to take leave, and (5) the employer denied the employee FMLA benefits
to which [he] was entitled.” Edgar v. JAC Products, Inc., 443 F.3d 501, 507 (6th Cir.
2006).
Plaintiff alleges that he followed instructions to call-in each day while his FMLA
paperwork was processed and that he did so until he was told, in March 2015, that his
FMLA documents had been successfully processed and he had been released from work.
Plaintiff’s physician also indicated that the proper FMLA paperwork had been submitted.
Yet, Plaintiff was later told that he was in violation of his employer’s attendance policy
and his efforts to correct the problem did not succeed because Defendant refused to
accept the corrected forms. His employment was terminated in May 2015.
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Several of the required FMLA elements are seen in Plaintiff’s allegations that his
physician submitted the required FMLA paperwork and that Defendant told Plaintiff it
had successfully processed the paperwork. Assuming these events occurred, Defendant
essentially acknowledged that Plaintiff was an eligible employee entitled to take FMLA
leave and that he gave Defendant notice of his intention to take FMLA leave. In addition,
Plaintiff sufficiently alleges that Defendant denied him FMLA leave to which he was
entitled. This is seen in his allegation that, after successfully processing his FMLA
paperwork, Defendant later notified Plaintiff that he was in violation of its attendance
policy. And, when he attempted to correct the problem, Defendant denied Plaintiff
FMLA leave to which he was entitled by refusing to accept Plaintiff’s corrected forms.
For all these reasons, Plaintiff’s proposed amended complaint states a plausible FMLA
interference claim.
Defendant lastly argues that the proposed amended complaint fails to show (1)
Plaintiff had a qualifying disability or (2) Defendant denied him any service or activity
protected by the ADA.
To raise a prima facie violation of the ADA, a plaintiff must allege facts showing,
in part, that he or she has a disability. Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir.
2011). “Under the ADA, the term ‘disability’ means a physical or mental impairment
that substantially limits one or more major life activities of an individual; a record of such
an impairment; or being regarded as having such an impairment. Ferrari v. Ford Motor
Co., 826 F.3d 885, 892 (6th Cir. 2016) (citing 42 U.S.C. § 12102(1)).

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Plaintiff alleges that the back and neck injuries he suffered in June 2014 and
January 2015 substantially interfered with his ability to lift heavy objects, a major activity
required of his job with Defendant. He alleges that Defendants refused to allow him to
perform light-duty work within his own department.
Plaintiff’s proposed ADA claim is not based on sufficient facts, when taken as
true, to show that he was under a “disability” under the ADA’s definition. Plaintiff’s
proposed amended complaint does not identify the particular injury he suffered in his
back or neck, and he provides no indication that he is limited by those injuries except as
to his ability to lift heavy objects. At most, his allegations show he might have some
restrictions caused by his back but even this is conjecture given the lack of additional
information. Plaintiff’s proposed amended complaint therefore fails to raise a plausible
assertion that his back and neck injuries constitute a disability under the ADA. Cf.
Adams v. Potter, 193 F. App’x 440, 444 (6th Cir. 2006) (suggesting, in dicta, “to classify
Adams as disabled because he cannot lift heavy objects or stand for long periods of time
or engage in repetitive bending, twisting, or stooping motions would require a broad
definition of disability—a definition that would cover almost everyone who suffers from
back problems. Such a definition is too broad and has been rejected by at least one of our
sister circuits.”) (citing, and parenthetically quoting, Mays v. Principi, 301 F.3d 866, 869
(7th Cir. 2002) (“The number of Americans restricted by back problems to light work is
legion. They are not disabled.”).

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Accordingly, Plaintiff’s Motion for Leave to File Amended Complaint is well
taken with the exception of Plaintiff’s proposed ADA claim (Count III), which should be
dismissed under Fed. R. Civ. P. 12(b)(6).

IT IS THEREFORE RECOMMENDED THAT:
1.

Motion to Withdraw Plaintiff’s Pro Se Proposed Amended Complaint and
Leave to File Amended Complaint (Doc. # 23) be granted, in part, and
Plaintiff’s proposed Amended Complaint (Doc. #24) be accepted as filed
with the exception of Count III, which should be dismissed under Fed. R.
Civ. P. 12(b)(6);

2.

Defendant’s Motion to Dismiss (Doc. #9) be denied as moot; and

3.

Plaintiff’s pro se Motion for Leave to Amend (Doc. #12) be denied as
withdrawn and moot.

August 3, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
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,
949-50 (6th Cir. 1981).

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