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Kurek v. Ohio Department of Developmental Disabilities

United States District Court, N.D. Ohio, Western Division

May 23, 2017

Audra Kurek, Plaintiff
v.
Ohio Department of Developmental Disabilities, et al., Defendants

          ORDER

          James G. Carr Sr. U.S. District Judge.

         This civil-rights case under 42 U.S.C. § 1983 is back before me on a motion by the plaintiff, Audra Kurek, for reconsideration or, in the alternative, leave to file a second amended complaint. (Doc. 33).

         Kurek alleged that the State Defendants - the Northwest Ohio Developmental Center (the Center), the Ohio Department of Developmental Disabilities, and several Center employees - deprived her of substantive and procedural due process when they terminated her employment. She also brought various state and federal claims against the Union that represented her.

         The State Defendants moved to dismiss the claims against them under Fed.R.Civ.P. 12(b)(6), and I granted the motion. Kurek v. Ohio Dep't of Dev. Disabilities, 2017 WL 1555930 (N.D. Ohio). I also ordered Kurek to show cause why I should not dismiss her claims against the Union. Id. at *7.

         Rather than respond to the show-cause order, Kurek filed the pending motion for reconsideration and/or leave to reinstate her procedural-due-process claim against three Center employees: defendants Suehrstedt, Jones, and Woodward.

         Kurek notes that, while I agreed that she “state[d] a prima facie case of procedural due process violations, ” Kurek, supra, 2017 WL 1555930, *6, I concluded that the complaint was deficient because it did not specify which defendants were responsible for the violations. She now argues that her earlier complaint adequately parceled out responsibility for the violations among Suehrstedt, Jones, and Woodward, and that, even if it had not, the proposed second amended complaint does so.

         The State Defendants oppose the motion, arguing principally that Kurek received “all the pre-deprivation due process rights she was entitled to according to a collective bargaining agreement and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).” (Doc. 35 at 3). They also renew their contention that Kurek has not alleged, let alone plausibly so, that “any state actor deprived her of post-deprivation due process rights.” (Id. at 4).

         For the following reasons, I deny Kurek's motion.

         Discussion

         A. Kurek Has Not Stated a Plausible Procedural Due Process Claim Against Suehrstedt, Jones, and Woodward

         According to the proposed amended complaint, Kurek “developed a reputation as a problem employee, and as such was subjected to discipline for a series of minor infractions, culminating in a ‘Last Chance Agreement.'” (Doc. 33-1 at ¶17).

         Soon thereafter, Suehrstedt, her supervisor, placed Kurek on administrative leave for eight days. (Id. at ¶19). Suehrstedt also ordered Kurek to call into work on each day of the leave period. (Id. at ¶20). Her failure to do so on one occasion precipitated her firing. (Id. at ¶¶21-22).

         Kurek alleges that she received a pre-termination hearing (id. at ¶24), and that Carrie Coffee, her Union Steward, argued that the “call-in” requirement violated an applicable collective bargaining agreement and thus could not support Kurek's firing. (Id. at ¶¶26-27). Nevertheless, the hearing officer - defendant Jones - recommended firing Kurek, and Suehrstedt, who knew that “the terms of [Kurek's] leave order ...


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