The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Norah McCann King
This matter is before the Court for consideration of a Motion to Dismiss (Doc. # 14) filed by Defendant Ohio Civil Rights Commission ("OCRC"), a Motion to Dismiss (Doc. # 15) filed by Defendant Ohio Unemployment Compensation Review Commission ("Unemployment Review Commission"), and a Motion to Dismiss (Doc. # 16) filed by Defendant Ohio Attorney General (Attorney General's Office"). This Court will also consider the memoranda in opposition (Docs. # 31, 33, 34) that has been filed in response to each motion to dismiss by Plaintiff Tina L. Hayner ("Plaintiff").
In June 2001, Plaintiff began full time employment with the City of Washington Court House ("the City") as a custodian. In June of 2002, Plaintiff applied for a street maintenance position, but the City selected an outside candidate. As a result, Plaintiff's union ("AFSCME") filed a grievance on Plaintiff's behalf, however, Plaintiff chose not to pursue the grievance. In September of 2002, Plaintiff applied for another street maintenance position and again the City did not hire her. AFSCME filed a second grievance on Plaintiff's behalf. The City offered Plaintiff to work part-time as a custodian and part-time as a street maintenance worker on a trial basis. AFSCME did not agree with the split work assignment and maintained its position that Plaintiff should have been selected full-time for the street maintenance position. AFSCME continued to pursue this grievance and eventually a settlement agreement was reached. Consequently, Plaintiff was promoted to the position of street maintenance worker on a full-time basis with a probationary promotional period of 120 days, and she received back pay.
Prior to the of end of the promotional probationary period, Plaintiff, AFSCME, and the City met to discuss Plaintiff's performance. The City was dissatisfied with Plaintiff's performance as a street maintenance worker and therefore decided to demote her back to her position as a custodian. On April 7, 2003, Plaintiff went to the City's Personnel Director and turned in her keys. The Personnel Director then advised her by letter that if Plaintiff entered an unapproved leave without pay status that the City would consider her to have abandoned her employment. Thus, when Plaintiff did not respond, the City assumed that she did, in fact, abandon her job. Despite being advised by AFSCME that it would file a grievance regarding the abandonment of her position, Plaintiff chose not to file a grievance.
Plaintiff subsequently filed a claim on April 28, 2003 for unemployment compensation benefits. On August 13, 2003 and September 11, 2003, the Unemployment Review Commission held an administrative hearing and issued a decision denying Plaintiff's claim. Plaintiff did not file an appeal with the common pleas court to review the Unemployment Review Commission's decision.
In April of 2003, Plaintiff also filed a charge of discrimination with the OCRC against the City and AFSCME. Plaintiff's charge alleged sex discrimination and unlawful retaliation. After conducting an investigation, the OCRC concluded that there was "probable cause" to believe that the City engaged in an unlawful discriminatory practice against Plaintiff, but found that there was "no probable cause" to believe that AFSCME engaged in any unlawful discriminatory practice. Plaintiff chose not to file an appeal with the common pleas court to review the "no probable cause" determination.
Thereafter, the OCRC issued an administrative complaint against the City alleging unlawful sex discrimination and unlawful retaliation. The Attorney General's Office undertook the prosecution of the case against the City. After discovery and an evidentiary hearing, the OCRC's Administrative Law Judge ("ALJ") issued a report finding that the City unlawfully retaliated against Plaintiff in violation of Ohio Rev. Code § 4112.02(1). The ALJ ordered the City to cease and desist its discriminatory practices and to receive training on compliance with Ohio's laws against discrimination.
The ALJ, however, also found that the City did not discriminate against Plaintiff on the basis of her sex. Also, the ALJ, did not reinstate Plaintiff to her former job because the ALJ found that Plaintiff "voluntarily resigned her position and was not constructively discharged." (Doc. # 4-4 ¶ 65.) Plaintiff chose not to file an appeal with the common pleas court.
On August 21, 2006, Plaintiff filed the Complaint (Doc. # 4) now under consideration. Plaintiff's complaint contains four claims: Claim One alleges causes of action against the City and AFSCME; Claim Two alleges causes of action against the Unemployment Review Commission; Claim Three alleges causes of action against the OCRC; and Claim Four alleges causes of action against the Attorney General's Office. Plaintiff seeks reinstatement of her job, $500,000, and costs. This Court will address Claims Two, Three, and Four in this Opinion and Order.*fn1 Claim One will be addressed by a separate order.
This Court finds that Defendants construed Plaintiff's complaint too narrowly when they posit that Plaintiff's claims "[are] essentially appeals of these OCRC decisions," (Doc. # 14) and that "the gravamen of [Plaintiff's] entire complaint is that her former employer discriminated against her on the basis of sex." (Doc. # 15.) Defendants' argument is based on the fact that Plaintiff's complaint protests the following: (1) the OCRC did not find probable cause against the AFSCME; (2) the ALJ did not find that the City unlawfully discriminated against her on the basis of sex; and (3) after finding that the City did unlawfully retaliate against her, the ALJ did not reinstate Plaintiff to her job. (Doc. # 4.) Thus, Plaintiff has alleged a claim of sex discrimination under Title VII. Defendants, however, fail to acknowledge that Plaintiff also alleges that Defendants conspired to discriminate against her on the basis of her sex. Therefore, because Plaintiff has alleged a conspiracy to violate a federal statutory right, Plaintiff, in effect, has brought a cause of action under 42 U.S.C. § 1983.
Defendants move to dismiss Plaintiff's complaint based on the following: (1) Eleventh Amendment immunity; (2) this Court lacks subject matter jurisdiction to hear Plaintiff's claims; and (3) Plaintiff's complaint fails to state a claim upon which relief can be granted.
This Court finds that dismissal of Plaintiff's complaint against these Defendants is warranted based on Fed. R. Civ. P. 12(b)(1). Alternatively, assuming that this Court did have subject matter jurisdiction over Plaintiff's Title VII claim, Defendants are immune from suit under the Eleventh Amendment. Finally, even if Defendants were not immune from suit, this Court finds that Plaintiff's Title VII claim should be dismissed under Fed. R. Civ. P 12(b)(6). With ...