United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge.
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).
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
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.
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.
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.
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).
following reasons, I deny Kurek's motion.
Kurek Has Not Stated a Plausible Procedural Due Process Claim
Against Suehrstedt, Jones, and Woodward
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
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).
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