The opinion of the court was delivered by: James L. Graham United States District Judge
This is an employment discrimination action brought by plaintiff Francisco Fernandez against the City of Pataskala, Ohio, ("the City"), the City of Pataskala Division of Police,*fn1 Chief Christopher Forshey and Deputy Chief Roy Nichols. Plaintiff was employed by the Division of Police until his resignation on January 11, 2004. Plaintiff filed his complaint on January 13, 2005, in the Court of Common Pleas of Licking County, Ohio. On January 24, 2005, defendants filed a notice of removal of the action to this court.
In Count One of the complaint, plaintiff, who is Hispanic, alleged that the City and Chief Forshey discriminated against him on the basis of his race and national origin through wrongful discipline, demotion, harassment and constructive discharge in violation of Ohio Rev. Code §§ 4112.02 and 4112.99. In Count Two, plaintiff alleged that defendants' acts of discrimination resulted in his constructive discharge in violation of the public policy of the state of Ohio. In Count Three, plaintiff asserted a claim under 42 U.S.C. §1983 against defendants Forshey and Nichols in their official and individual capacities. In Count Three, plaintiff alleged that defendants Forshey and Nichols discriminated against him by demoting him, disciplining him, and creating a hostile work environment through unequal application of rules, regulations and policies, and that these actions led to plaintiff's constructive termination. Plaintiff claimed that defendants' actions violated his substantive due process and equal protection rights under the Fourteenth Amendment to the United States Constitution.
This matter is now before the court on the defendants' motions for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and for summary judgment pursuant to Fed.R.Civ.P. 56. In his memorandum contra defendants' motion for summary judgment, plaintiff indicated that he was voluntarily dismissing his §1983 official capacity claim against defendants Forshey and Nichols, and his claim of unlawful constructive discharge in violation of public policy (Count Two). See Doc. No. 34, p. 1. The court will address the defendants' motions insofar as they pertain to the remaining claims, namely, the discrimination claim against the City and defendant Forshey under §§4112.02 and 4112.99, and the §1983 claim against defendants Forshey and Nichols in their individual capacities.
I. Motion for Partial Judgment on the Pleadings Defendants have filed a motion pursuant to Fed.R.Civ.P. 12(c) for partial judgment on the pleadings. Judgment may be granted under Rule 12(c) if the court determines that the moving party is entitled to judgment as a matter of law. Astor v. International Bus. Machs. Corp., 7 F.3d 533, 538 (6th Cir. 1993). Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they apply to motions to dismiss under Fed.R.Civ.P. 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). A motion for judgment on the pleadings under Rule 12(c) may be granted only if, construing the complaint in the light most favorable to the plaintiff, it is determined that the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). In reviewing the motion, this court must accept all of the complaint's factual allegations as true. Wiegler v. IBP Hog Market, Inc., 249 F.3d 509, 511, 512 (6th Cir. 2001).
Defendants Forshey and Nichols first move for judgment on the pleadings on plaintiff's substantive due process claim. In order to state a claim that he was deprived of substantive due process, plaintiff must demonstrate action that shocks the conscience and that amounts to an arbitrary infringement upon personal immunities that are implicit in the concept of ordered liberty. See Rochin v. California, 342 U.S. 165, 172 (1952); LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1111 (6th Cir. 1995). Courts have been restrictive in expanding substantive due process to include claims other than those relating to marriage, procreation, and the right to bodily integrity. Albright v. Oliver, 510 U.S. 266, 272 (1994).
Plaintiff alleges that he was denied substantive due process due to the defendants' alleged discrimination in administering discipline, investigating him for suspected misconduct, and demoting him from the rank of lieutenant to the rank of police officer, culminating in his constructive discharge. However, the Sixth Circuit has rejected attempts to expand substantive due process protection to claims involving property interests in employment. See Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992)(state-created right to tenured position lacks substantive due process protection); Charles v. Baesler, 910 F.2d 1349, 1355 (6th Cir. 1990)(no substantive due process protection for state-created promotion rights). The violation of a fundamental right is necessary for a successful substantive due process claim for the termination of public employment. Perry v. McGinnis, 209 F.3d 597, 609 (6th Cir. 2000).
In addition, because of the highly destructive potential of overextending substantive due process protection, see Washington v. Glucksberg, 521 U.S. 702, 720 (1997)(explaining the dangers), and because the doctrine's borders are so undefined, the Supreme Court has held that the concept of substantive due process has no place when another provision of the Constitution directly addresses the type of illegal governmental conduct alleged by the plaintiff. See Albright, 510 U.S. at 273 ("Where a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'")(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). See also Montgomery v. Carter County, Tenn., 226 F.3d 758, 769 (6th Cir. 2000)(analyzing substantive due process claim for taking of private driveway for private use under the Takings Clause).
Plaintiff argues that he has alleged the violation of a fundamental right sufficient to sustain a substantive due process claim. The only fundamental right alleged in his complaint is the right to be treated equally regardless of race and national origin, which falls within the purview of the Equal Protection Clause. Numerous courts have held that where the party's substantive due process claim is based on alleged acts of discrimination, that claim should be analyzed under the framework of the Equal Protection Clause rather than as a substantive due process claim. See, e.g., Eby-Brown Co., LLC v. Wisconsin Dep't of Agriculture, 295 F.3d 749, 754 (7th Cir. 2002)(claims of alleged unequal treatment properly analyzed under the Equal Protection Clause, not as substantive due process claims); Yassini v. City of Sunnyvale, 103 F.3d 143 (table), 1996 WL 711434 (9th Cir. Dec. 5, 1996)(claim concerning validity of ordinance covered by explicit constitutional provisions protecting equal protection, precluding relief on substantive due process theory); Gehl Group v. Koby, 63 F.3d 1528, 1539 (10th Cir. 1995)(claims regarding alleged racially discriminatory animus should be analyzed under explicit guarantees of Equal Protection Clause), implicitly overruled on other grounds by Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001); National Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995)(economic regulations evaluated under equal protection principles rather than as a substantive due process claim); Curry v. Pulliam, 234 F.Supp.2d 921, 927 (S.D.Ind. 2002)(holding that plaintiff who alleged race discrimination in the termination of his employment had no substantive due process claim because he had alleged a violation of the Equal Protection Clause); Hogan v. State of Connecticut Judicial Branch, 220 F.Supp.2d 111, 123 (D.Conn. 2002)(substantive due process claim alleging race discrimination in termination of employment "should be analyzed exclusively under the law of equal protection, not substantive due process.").
Since plaintiff has alleged no violation of a fundamental right in his complaint other than the alleged violation of his equal protection rights, his §1983 claim must be analyzed according to the laws governing equal protection claims. The complaint fails to state a separate claim for a violation of substantive due process rights, and to the extent that plaintiff relies on substantive due process as a separate theory of recovery, the defendants are entitled to judgment on the pleadings.
The City has also moved for judgment on the pleadings to the extent that plaintiff has requested an award of punitive damages and attorney's fees on his claim under §4112.02 and 4112.99.
In the general case, §4112.99 authorizes an award of punitive damages upon a showing of actual malice. Rice v. CertainTeed Corp., 84 Ohio St.3d 417, 422, 704 N.E.2d 1217 (1999). However, punitive or exemplary damages may not be awarded against a political subdivision unless such damages are specifically authorized by statute. See Ohio Rev. Code §2744.05(A); Spires v. City of Lancaster, 28 Ohio St.3d 76, syllabus, 502 N.E.2d 614 (1986); Ranells v. Cleveland, 41 Ohio St.2d 1, 6-8, 321 N.E.2d 855 (1975); Franklin v. City of Columbus, 130 Ohio App.3d 53, 63, 719 N.E.2d 592 (1998). Since there is no language in §§4112.02 and 4112.99 expressly authorizing an award of punitive damages against a political subdivision, plaintiff may not recover punitive damages against the City.
As to attorney's fees, Ohio follows the general "American rule," under which the prevailing party cannot recover attorney's fees in the absence of express statutory authorization. Sorin v. Board of Educ. of Warrensville Hts. School Dist., 46 Ohio St.2d 177, 179, 347 N.E.2d 527 (1976). Sections 4112.02 and 4112.99 do not specifically authorize an award of attorney's fees. Sutherland v. Nationwide Gen. Ins. Co., 102 Ohio App.3d 297, 300, 657 N.E.2d 281 (1995). Attorney's fees may be recovered in an action under §4112.99 if punitive damages are awarded. Id., 102 Ohio App.3d at 301. However, since punitive damages are not allowed against a municipal tortfeasor absent statutory authorization, and since §4112.99 does not provide such authorization, then attorney's fees are not recoverable against the City in an action under §4112.99. See Franklin, 130 Ohio App.3d at 63; Henry v. City of Akron, 27 Ohio App.3d 369, 371, 501 N.E.2d 659 (1985).
Plaintiff may not recover punitive damages or attorney's fees against the City on his claims under §§4112.02 and 4112.99, and the City is entitled to partial judgment on the pleadings in that regard.
II. Motion for Summary Judgment A. Standard for Summary Judgment
Defendants have moved for summary judgment on plaintiff's claims. The procedure for granting summary judgment is found in Fed. R. Civ. P. 56(c), which provides:
The judgment sought shall be rendered forthwith 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 judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
B. Preemption by Title VII
Plaintiff asserts claims of discrimination based on race and national origin under §4112.02 against the City and defendant Forshey, and claims of discrimination in violation of his equal protection rights under §1983 against defendants Forshey and Nichols in their individual capacities.
Defendants argue that plaintiff should not be permitted to pursue his equal protection claims under §1983 because those claims are preempted by Title VII of the Civil Rights Act of 1964. However, plaintiff has dismissed any claims under §1983 against the City. Since supervisors such as defendants Forshey and Nichols are not subject to suit under Title VII, see Weberg v. Franks, 229 F.3d 514, 522 n. 7 (6th Cir. 2000), plaintiff's only federal avenue of redress against these defendants is under §1983. Further, while it is true that an employee may only sue a public employer under Title VII when the right to be vindicated is one created solely by Title VII, such as Title VII's prohibition against retaliation for invoking Title VII's administrative remedies, an employee who alleges that the employer's conduct violated a provision of the Constitution may also seek remedies provided by §1983 in addition to those created by Title VII. Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1204-05 (6th Cir. 1984). See also Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 168-69 (6th Cir. 2004)(§1983 retaliation claim based on the First Amendment not preempted by Title VII). Here, plaintiff has asserted a §1983 claim based on alleged violations of his rights under the Equal Protection Clause, and therefore his §1983 claim is based on a source independent of Title VII and is not preempted by Title VII. See Russell v. Drabik, 24 Fed.Appx. 408, 411 (6th Cir. 2001)(claims of failure to promote and constructive demotion based on equal protection theory properly asserted under §1983).
C. Statute of Limitations - §1983
Defendants also argue that plaintiff's §1983 claim, insofar as it relates to his demotion in 2002, is barred by the statute of limitations. The statute of limitations applicable to a §1983 claim in Ohio is two years. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003). The statute is triggered when the plaintiff knows or has reason to know of the injury which is the basis of the action. Kelly v. Burks, 415 F.3d 558, 561 (6th Cir. 2005). The plaintiff's demotion occurred in September of 2002, and he knew or had reason to know of his injury at that time. Although plaintiff's demotion was the subject of a union grievance which was not resolved until after plaintiff resigned his position, the pendency of a grievance proceeding does not toll the statute of limitations. See Delaware State College v. Ricks, 449 U.S. 250, 261 (1980); Kelly, 415 F.3d at 561.
Plaintiff argues that this claim is preserved under the continuing violations doctrine. The Sixth Circuit has recognized two distinct categories of continuing violations, those alleging serial violations and those identified with a longstanding and demonstrable policy of discrimination. See Alexander v. Local 496, Laborers' Int'l Union of North America, 177 F.3d 394 (6th Cir. 1999); Haithcock v. Frank, 958 F.2d 671 (6th Cir. 1992). The first category exists where there is evidence of present discriminatory activity, such as an employer who continues to presently impose disparate work assignments. The second category occurs where the employer has engaged in a long-standing and demonstrable policy of discrimination, with evidence that intentional discrimination against plaintiff's class was the employer's standard operating procedure. Burzynski v. Cohen, 264 F.3d 611, 618 (6th Cir. 2001). Under the continuing violations doctrine, "a plaintiff is entitled to have the court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time barred." Alexander, 177 F.3d at 408 (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)).
However, the Sixth Circuit rarely extends this doctrine to §1983 actions. Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003). In Sharpe, the Sixth Circuit noted the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), where the Court held that discrete discriminatory acts such as termination, failure to promote, denial of transfer, or refusal to hire are not actionable if time barred under Title VII, even when they are related to acts alleged in timely filed charges. The Sixth Circuit concluded that the holding in Morgan was also applicable to §1983 claims of discrimination, and held that "plaintiffs are now precluded from establishing a continuing violation exception by proof that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period." Id. at 267-68. Here, the plaintiff's demotion in September of 2002 constituted the type of discrete discriminatory act referred to in Morgan, and the fact that it is alleged to have been one of a series of discrete acts of discrimination is insufficient to save it from the limitations bar.
The evidence submitted in this case is also insufficient to establish the second category of continuing violation. To establish a longstanding and demonstrable policy of discrimination, a plaintiff must demonstrate something more than the existence of discriminatory treatment in his case. Haithcock, 958 F.2d at 679. Plaintiff does not allege class-wide discriminatory action, nor does he represent a class. See Sharpe, 319 F.3d at 269.
Plaintiff relies on an incident which allegedly occurred in 1999 between Nichols and a Hispanic officer, Officer Herrera. According to plaintiff, Nichols became upset when Officer Herrera refused to work overtime and pushed him against the wall. However, there is no evidence that Nichols' actions were the result of racial bias rather than simply being upset because Officer Herrera refused to comply with his order. There is no evidence that Officer Herrera ever alleged that Nichols pushed him because he was Hispanic, or that Herrera ever complained about discrimination in the Division. Even if the incident was racially motivated, this isolated incident, which occurred two years before Chief Forshey assumed leadership of the Division, and the alleged acts of discrimination in plaintiff's case are insufficient to show the existence of a longstanding and demonstrable policy of discrimination against Hispanics as a class or to create a genuine issue of material fact in that regard.
Since plaintiff's complaint was filed on January 13, 2005, his §1983 claim is barred by the two-year statute of limitations insofar as it applies to his demotion in September of 2002. However, since the statute of limitations for an action under §4112.99 is six years, see Cosgrove v. Williamsburg of Cincinnati Mgmt. Co., Inc., 70 Ohio St.3d 281, 282, 638 N.E.2d 991 (1994), plaintiff's alleged discriminatory demotion is still a part of his §4112.99 claim.
III. Plaintiff's Discrimination Claims