Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gary Franks v. Village of Bolivar

November 18, 2011


The opinion of the court was delivered by: Judge Sara Lioi


Before the Court is a motion for partial judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) filed by Defendants Village of Bolivar (the "Village") and Rebecca Hubble ("Hubble") (collectively "Defendants"). (Doc. 7.) Plaintiff Gary Franks ("Plaintiff" or "Franks") has filed an opposition brief (Doc. 8) to Defendants' motion, to which Defendants have filed a reply (Doc. 9). In their motion, Defendants seek judgment on four of Plaintiff's claims as well his claim for punitive damages. This matter is ripe for disposition. For the following reasons, the motion is GRANTED in part and DENIED in part.


This case arises out of the employment and subsequent termination of Franks by the Village of Bolivar and its Mayor Rebecca Hubble. Franks had been employed as the Water and Street Superintendent for the Village of Bolivar for 33 years. (Doc. 1-2, Compl. at ¶ 8.) His employment was for a yearly-appointed term, commencing January of each calendar year and ending at the end of the calendar year. (Compl. at ¶ 9.) Franks alleges that, because Defendants had not terminated him or stripped him of his supervisory status by the end of 2010, he was effectively reappointed to his position as Superintendent as of January of 2011. (Compl. at ¶ 17.)

As of February 7, 2011, the Village Council had voted not to appoint Franks as the Superintendent for 2011, and he was terminated soon thereafter, on February 21, 2011.*fn1 (Compl. at ¶¶ 18 & 21.) Before the date of his termination, Franks alleges that he had continued to perform his duties, and that he was paid at the same rate he had previously been paid as a Superintendent. (Compl at ¶¶ 13-16.)

On March 27, 2011, Franks filed his complaint for relief under 42 U.S.C. § 1983 in the Tuscarawas County Court of Common Pleas. (Doc. 1-2.) Franks asserts five counts in his Complaint for age discrimination, retaliatory discharge, breach of contract, abuse of power and intentional infliction of emotional distress.

On April 8, 2011, Defendants removed the action to this Court. (Doc. 1). On April 30, 2011, Defendants filed an answer to Plaintiff's complaint (Doc. 6) and concurrently filed a Motion for Partial Judgment on the Pleadings (Doc. 7).


Under Rule 12(c), a party may move for judgment on the pleadings any time after the pleadings are closed but early enough not to delay trial. The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998)).

In deciding a motion to dismiss under Rule 12(b)(6), a court must take all well pled allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93--94 (2007) (citations omitted). "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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[,]" Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 44, 47 (1957). Although this pleading standard does not require great detail, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). In other words, "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Id. at 556, n. 3 (criticizing the Twombly dissent's assertion that the pleading standard of Rule 8 "does not require, or even invite, the pleading of facts"). In order to grant either a motion for judgment on the pleadings under Rule 12(c) or a motion to dismiss under 12(b)(6), the court must determine that "the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle [it to] relief." J.H. Routh Packing Co., 246 F.3d at 852.


In their motion, Defendants seek judgment on four of Franks' five claims: Count 1, alleging that Defendants unlawfully discriminated against Franks on the basis of his age in violation of Ohio Rev. Code § 4112.02(A); Count 3, alleging that the Village breached an implied employment contract with Franks; Count 4, alleging abuse of power by Hubble in her individual and official capacities in violation of Ohio Rev. Code § 124.61; and Count 5, alleging that the Village and Hubble, in her official capacity, intentionally inflicted emotional distress on Franks. Additionally, Defendants' motion seeks judgment on Franks' claim for punitive damages as against the Village and Hubble in her official capacity.

A.Count 1

Count 1 of Franks' complaint alleges his termination was the result of unlawful age discrimination in violation of Ohio Rev. Code § 4112.02. Defendants, relying on Twombly, argue that Franks has failed to plead any facts, which if taken as true, would establish that his termination was in any way related to his age or that he was treated any differently from similarly situated individuals.

Ohio Rev. Code § 4112.02(A) provides, in relevant part, as follows: It shall be an unlawful discriminatory practice: [.] for any employer, because of the [.] age [.] of any person, to discharge without just cause [.] or otherwise to discriminate against that person with respect to [.] tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Ohio Rev. Code § 4112.02(A). Further, Ohio Rev. Code § 4112.14 provides that, "No employer shall [.] discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job [.]." Ohio Rev. Code § 4112.99 authorizes civil actions for any violations of Chapter 4112.

The Ohio courts "have looked to federal case law [interpreting Title VII of the Civil Rights Act of 1964] when considering claims of employment discrimination brought under the Ohio Revised Code." Coryell v. Bank One Trust Co., 803 N.E.2d 781, 786 (Ohio 2004). Pursuant to this authority, " '[t]o prevail in an employment discrimination case, a plaintiff must prove discriminatory intent' and may establish such intent with either direct or indirect methods of proof." ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.