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Edelstein v. Stephens

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

February 16, 2018

JUDGE GREG STEPHENS, et al., Defendants.

          Barrett, J.


          Karen L. Litkovitz United States Magistrate Judge.

         Plaintiff Kimberly Edelstein brings this action alleging violations of her rights under federal and state law by defendants Judge Greg Stephens, Butler County, Ohio, Michael Gmoser and Dan Ferguson. Plaintiff filed an amended complaint on July 21, 2017. (Doc. 20). This matter is before the Court on defendants' motion for partial dismissal of the amended complaint (Doc. 22), plaintiffs response in opposition (Doc. 26), defendants' reply in support of the motion (Doc. 27), and plaintiffs sur-reply (Doc. 28-1). Plaintiff has also filed a motion to stay a decision on the motion to dismiss as to Count II of the amended complaint only. (Doc. 30). Defendants have not filed a response to plaintiffs motion.[1]

         Plaintiff has requested oral argument on defendants' motion. (Doc. 26). The legal and factual issues involved in this case are not complex and they have been fully briefed by the parties. Pursuant to S.D. Ohio Civ. R. 7.1, the Court therefore finds that oral argument is not "essential to the fair resolution" of this case and denies plaintiffs request.

         I. Background

         Defendants have summarized the facts of the amended complaint that are relevant to the Counts they move to dismiss in their memorandum in support of their motion to dismiss. (Doc. 22 at 3-5). Plaintiff has incorporated defendants' summary of the facts into her response. (Doc. 26 at 1). The Court therefore adopts defendants' summary of the facts alleged by plaintiff in the amended complaint for purposes of the motion to dismiss. These allegations of fact are set forth below:

         Plaintiff was employed as a staff attorney/magistrate for eight and one-half years by Judge Patricia S. Oney. (Doc. 20, ¶ 9). Plaintiff had been allowed paid time off to observe the Jewish holidays which she had requested by Judge Oney. (¶ 13). On July 28, 2016, Judge Stephens approved plaintiffs request to take eight non-consecutive days off in October to observe the Jewish holidays and requested that she inform the rest of his staff of the specific days she would be out of the office. (¶¶ 25, 27).

         On or about August 1, 2016, Judge Stephens informed plaintiff that he was terminating her employment because she did not fit in with his staff. (¶¶ 30, 32). Judge Stephens told plaintiff that the problem was not her work performance and that he would not contest unemployment benefits. (¶¶ 34, 36). He further agreed to provide a letter of recommendation but would not reconsider his decision to let her go after plaintiff said she was responsible for supporting a family of five. (¶ 37). Plaintiff requested that Judge Stephens allow her to stay for an additional three months, which Judge Stephens denied. (¶¶ 38, 39). Judge Stephens provided false and negative comments about plaintiff to unnamed prospective employers. (¶¶42, 43).

         Judge Stephens and Prosecuting Attorney Gmoser were friends when Judge Stephens worked in the Prosecutor's Office, and Gmoser published false statements to a potential employer of plaintiff concerning her employment record and work performance. (¶¶ 188-190). The statements Edelstein attributes to Gmoser are that her work was "disjointed"; he had trouble "getting stuff back from her on foreclosures"; and he "had problems getting things." (¶ 191). Plaintiff never worked for or with Gmoser and he had no knowledge of her work performance. Gmoser's statements were made in bad faith, were known to be false, and were made with reckless disregard for the truth. (¶ 197). Gmoser 'made these statements in support of his friend Judge Stephens in retaliation for plaintiff ''litigating against Defendant Stephens and Defendant Butler County, Ohio." (¶ 200). These statements have caused harm to plaintiffs personal and professional reputation. (¶201).

         Assistant Prosecutor Dan Ferguson, when asked his opinion about Edelstein, stated to a potential employer, "Oh she's horrible." (¶ 208). Ferguson was not in a position to provide a reference, and he made the statement in support of his friend Judge Stephens and in retaliation for plaintiff litigating against Judge Stephens and Butler County. (¶¶ 211, 217).

         Plaintiff and Judge Stephens entered into an oral agreement to provide each other three months' notice in the event either party wished to terminate the employment relationship, allegedly altering her previously at-will status. (¶¶ 228, 235). Judge Stephens terminated plaintiffs employment without providing notice, purportedly in breach of the oral agreement. (¶¶ 241-242). Plaintiff had no work performance issues in the nine years she was employed by Judges Oney and Stephens. (¶ 266). She was performing her own job duties and most of the duties of Judge Stephens' personal assistant, and she was handling the entire civil docket for Judge Stephens. (¶ 268). Judge Stephens was not angry or nasty with plaintiff until she requested the Jewish holidays off for October 2016. (¶ 270). Judge Stephens had his Judicial Assistant Melinda Barger present when he terminated plaintiff, and Barger was "smirking at plaintiff while she was being terminated." (¶¶ 271-72). Judge Stephens permitted his staff to provide negative comments about plaintiff to attorneys, court staff and potential employers, and the manner in which Judge Stephens terminated plaintiff gave the impression to other employees of the court and attorneys of the local bar that plaintiffs termination was due to misconduct by her. (¶¶ 277-78, 291).

         Judge Stephens conveyed to plaintiff that she would have job security so long as her work performance was good, and she was led to believe she would not be terminated without just cause. (¶¶ 322, 325).

         Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) against Butler County on January 31, 2017, claiming religious discrimination under Title VII and retaliation. Her charge was dismissed on February 8, 2017.

         II. Defendants' motion to dismiss (Doc. 22)

         Defendants move to dismiss the following Counts of plaintiff s amended complaint with prejudice under Fed.R.Civ.P. 12(6) for failure to state a claim upon which relief can be granted: Counts I, IV, VI, VII, VIII, X, XI, XII, XIII, XIV, XV in part, XVI, XVII, XVIII and XX. Defendants move to dismiss Count II for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

         A. Count II - Government Employee Rights Act of 1991

         Defendants raise a subject matter jurisdiction challenge to plaintiffs claim brought in Count II under the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. § 2000e-16a et seq. (Doc. 22 at 6-7). The GERA protects certain State employees from discrimination based on religion and other protected bases, including employees chosen by an elected public office holder in a political subdivision of any State to be a member of the elected official's personal staff. 42 U.S.C. § § 2000e-16b(a)(1), 16c(a)(1). Section 2000e-16c sets forth the applicable enforcement procedures. It provides in relevant part:

Any individual referred to in subsection (a) of this section may file a complaint alleging a violation, not later than 180 days after the occurrence of the alleged violation, with the Equal Employment Opportunity Commission, which, in accordance with the principles and procedures set forth in sections 554 through 557 of Title 5, shall determine whether a violation has occurred and shall set forth its determination in a final order. If the Equal Employment Opportunity Commission determines that a violation has occurred, the final order shall also provide for appropriate relief.
Any party aggrieved by a final order under subsection (b) of this section may obtain a review of such order under chapter 158 of Title 28. For the purpose of this review, the Equal Employment Opportunity Commission shall be an "agency" as that term is used in chapter 158 of Title 28.

42 U.S.C. § 2000e-16c(b)(1), (c).

         Plaintiff claims that she is entitled to protection under the GERA as a member of the personal staff of Judge Stephens, an elected state official, and that defendant Stephens violated the Act by discriminating against her on the basis of her religion when he terminated her employment after she requested time off from work to observe the Jewish High Holidays. (Doc. 20, ¶¶ 68-75).

         Defendant contends that the district court lacks jurisdiction over plaintiffs GERA claim. Defendant argues that under the statutory scheme, a claimant who wishes to pursue a GERA claim must first file a complaint with the EEOC, which shall set forth its determination in a final order. 42 U.S.C. § 2000e-16c(c). Defendant argues that if the complainant is dissatisfied with the EEOC's determination, she may obtain review from a federal court of appeals pursuant to chapter 158 of Title 28; however, there is no provision under the Act for judicial review of a claim by the federal district courts. (Doc. 22 at 6-7, citing Dyer v. Radcliffe, 169 F.Supp.2d 770, 775-76 (S.D. Ohio 2001), and collecting cases). Defendant asserts that plaintiff filed an EEOC charge under Title VII, not GERA as the statute requires, and that in any event the district court lacks jurisdiction to consider the claim.

         Plaintiff concedes that if the EEOC renders a final decision on a complaint filed under the GERA, the district court does not have jurisdiction over the GERA claim that is the subject of the complaint. (Doc. 26 at 2). However, plaintiff argues that it was the legislative intent that an aggrieved individual not be required to first file an administrative complaint with the EEOC; if the individual opts not to file a complaint with the EEOC, then the district court has "initial jurisdiction" over the GERA claim; and if the EEOC declines to review the GERA complaint, the district court likewise has jurisdiction. (Id. at 1-7).

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction may present a facial or factual challenge to the Court's subject matter jurisdiction. See DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citations omitted). A facial attack on the Court's subject matter jurisdiction alleged in the complaint "merely questions the sufficiency of the pleading." Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). When resolving a facial challenge, the Court accepts the factual allegations of the complaint as true. DLX, Inc., 381 F.3d at 516. If the motion presents a factual challenge, the Court may consider evidence outside the pleadings to determine if jurisdiction exists. See Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003). In a factual challenge to the Court's jurisdiction, there is no presumption of truthfulness in favor of the non-moving party. U.S. v. A.D. Roe Co., Inc., 186 F.3d 717, 722 (6th Cir. 1999). Whenever subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Cartwright v. Gamer, 751 F.3d 752, 759-60 (6th Cir. 2014). Here, defendants' Rule 12(b)(1) motion presents a facial challenge to Count II of the amended complaint because it challenges the sufficiency of plaintiff s pleading.

         Although it does not appear that the Sixth Circuit has addressed the precise jurisdictional issues raised by defendants' motion to dismiss, other federal courts to have addressed these issues appear to be in agreement on the correct interpretation of the GERA. First, these courts have held that if an individual who falls within the purview of the GERA, 42 U.S.C. § 2000e-16c, wishes to file a discrimination claim against her employer, the claim must first be filed with the EEOC. 42 U.S.C. § 2000e-16c(b)(1). See Helm v. Kansas, No. 08-2459-JAR, 2010 WL 11527151, at *7 (D. Kan. Mar. 18, 2010), aff'd, 656 F.3d 1277 (10th Cir. 2011); Grain v. Butler, 419 F.Supp.2d 785, 788 (E.D. N.C. 2005); Fischer v. New York State Dept. of L., 12CIV.0421, 2014 WL 12674462, at *1 (S.D.N.Y. June 20, 2014); Stitz v. City of Eureka Springs, Ark., 9 F.Supp.2d 1046, 1056 (W.D. Ark. 1998). The EEOC determines whether a violation has occurred and issues an opinion through a final order. Fischer, 2014 WL 12674462, at *1 (citing 42 U.S.C. § 2000e-16c(b)(1)). "Any party aggrieved by a final order" of the EEOC "may obtain a review of such order under chapter 158 of Title 28 [28 U.S.C. §§ 2341-2350]."[2] 42 U.S.C. § 2000e-16c(c). A party cannot obtain judicial review until the EEOC has issued a "final order." Dyer, 169 F.Supp.2d 770, 775. In accordance with the terms of the statute, multiple federal courts have held that judicial review of an EEOC's GERA order lies exclusively in a court of appeals and district courts lack jurisdiction to hear claims covered by GERA. See, e.g., DePriest v. Milligan, No. 4:12-cv-00235, 2015 WL 151092, at *10 (E.D. Ark. Jan. 12, 2015), aff'd, 823 F.3d 1179 (8th Cir. 2016); Banks v. First Judicial Dist., 544 Fed.Appx. 79, 81 (3d Cir. 2013); Helm, 2010 WL 11527151, at *7; Kelley v. City of Albuquerque, 542 F.3d 802, 808 n. 4 (10th Cir. 2008); Crain, 419 F.Supp.2d at 788; Stitz, 9 F.Supp.2d at 1056-57.

         The Court finds the language of the statute is clear, and the reasoning of the cases cited above is persuasive. Plaintiff has not cited any authorities that call the holdings of these cases into question. Plaintiff was required to first obtain a final decision from the EEOC before seeking judicial review of her GERA claim, and she could obtain judicial review only in the court of appeals. Because the district court does not have jurisdiction to review a decision of the EEOC on a GERA complaint, this Court lacks subject matter jurisdiction over plaintiffs GERA claim. Defendants' motion to dismiss Count II under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction should be granted. Plaintiffs motion to stay a decision on defendants' motion to dismiss the claim pending a decision by the EEOC on plaintiffs corrected charge submitted to the agency under the GERA (Doc. 30) should be denied as a stay would serve no purpose.[3]

         B. Count IV- Equal Protection Claim

         Defendants move to dismiss the remaining claims they address in their motion under Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is entitled to relief is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)). Nevertheless, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While the Court must accept all well-pleaded factual allegations as true, the Court need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Attain, 478 U.S. 265, 286 (1986)). Although a complaint need not contain "detailed factual allegations, " it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. The complaint must "give the defendant fair notice of what the .. . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

         Plaintiff alleges in Count IV that defendant Butler County violated her Equal Protection rights through its facially neutral custom or policy under Ohio Rev. Code § 325.19 designating Christmas as a "legal holiday." (Doc. 20, ¶¶ 86-102). Section 325.19 provides in relevant part:

In addition to vacation leave, a full-time county employee is entitled to eight hours of holiday pay for New Year's day, Martin Luther King day, Washington-Lincoln day, Memorial day, Independence day, Labor day, Columbus day, Veterans' day, Thanksgiving day, and Christmas day, of each year.

Ohio Rev. Code Ann. § 325.19(D)(1). Plaintiff alleges Butler County's policy allows Christians to observe a religious holiday without utilizing vacation time; allows Christians to exercise their First Amendment right to freely exercise their religion without retribution, threat of job loss, or fear of reprisals; and protects only Christians' right to freely exercise their religion by observing Christmas while not protecting other individuals' right to freely exercise their religion. Plaintiff alleges the policy does not promote a compelling state interest. Plaintiff alleges the facially neutral policy or custom is applied in a discriminatory manner because members of other religions must use vacation time to observe their religion and are vulnerable to termination for requesting a religious holiday off of work. Plaintiff alleges the policy does not provide a reasonable accommodation for employees who practice a religion other than Christianity. Plaintiff alleges Butler County's policy placed substantial pressure on her to violate her religious beliefs or risk losing her job because as an observant Jew, she was required to abstain from work on The High Holidays. Plaintiff alleges the policy violated her right to the free exercise of her religion as guaranteed by the First Amendment and her right to equal protection of the laws under the Fourteenth Amendment. Plaintiff alleges Butler County's deprivation of her equal protection rights allowed its official, defendant Stephens, to terminate her for requesting time off of work for the Jewish High Holidays. She alleges she has been damaged as a direct result of Butler County's custom and/or policy.

         Defendant Butler County argues that its recognition of Christmas as a paid policy under Ohio Revised Code § 325.19, together with its failure to implement a policy that would protect non-Christians who seek time off for different religious holidays, did not violate plaintiffs equal protections rights. (Doc. 22 at 7-9). Defendant relies on Sixth Circuit case law holding that a comparable federal statute declaring Christmas day to be a legal public holiday, 5 U.S.C. § 6103, does not violate the First Amendment establishment clause or a non-Christian's equal protection rights and that there is a legitimate, secular purpose for establishing Christmas as a "legal public holiday." Ganulin v. U.S., 71 F.Supp.2d 824, 837 (S.D. Ohio 1999), aff'd, 238 F.3d 420 (6th Cir. 2000). Defendant also relies on Sixth Circuit case law for the proposition that while an employee is entitled to reasonable accommodations for the exercise of his or her religion, the employer is not required to accommodate the employee in the manner the employee finds most desirable. Creusere v. Bd. of Educ. of City Sch. Dist. of City of Cincinnati, 88 Fed.Appx. 813, 819-20 (6th Cir. 2003).

         In response, plaintiff alleges that defendant's argument is flawed because it misconstrues the nature of her claim. (Doc. 26 at 14-17). Plaintiff asserts that she brings her claim under the free exercise clause of the First Amendment, not the establishment clause. Plaintiff alleges that Butler County's "holiday policy" has the effect of restricting her right to freely exercise her religion because she can be terminated for taking time for work, she can be denied time off work for the Jewish holidays, and she must use vacation time or make up hours if she takes time off. Plaintiff alleges that Butler County has not created a policy that allows for an accommodation but has left it to supervisors to handle such circumstances, and supervisors may refuse to provide a reasonable accommodation to an employee as occurred here.

         In reply, defendants challenge plaintiffs claim that Butler County's policy, which adopted Ohio Revised Code § 325.19 and made Christmas one of eight paid legal holidays, violated plaintiffs equal protection rights. Defendants deny that the policy allowed plaintiff to be terminated for requesting or for taking time off work to practice her religion, and defendants argue that plaintiff had the same rights as other employees under the policy to request time off for certain religious observances and to be accommodated if her employer could reasonably do so without undue hardship. (Doc. 27 at 5, citing 42 U.S.C. § 2000e(j) ("The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.")).

         The Equal Protection clause of the Fourteenth Amendment requires that the government treat similarly situated persons in a like manner. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The Equal Protection clause prohibits disparate treatment that is "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456 (1962). The First Amendment's Free Exercise Clause, made applicable to state and local governments by the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const, amend. I. "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (citing Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U.S. 67, 69-70, 73 (1953)). In the context of the free exercise clause, "a law that is neutral and of general applicability need not be justified by a compelling state interest even if the law has the incidental effect of burdening a particular religious practice." Ward v. Members of Bd. of Control of E. Michigan U., 700 F.Supp.2d 803, 817 (E.D. Mich. 2010)

         Plaintiff has not stated a claim to relief against Butler County for a violation of her First Amendment and equal protection rights. In essence, plaintiffs claim against Butler County is that the County promulgated a facially neutral custom or policy designating Christmas as a paid legal holiday, which was applied against her in a discriminatory manner and in a manner that violated her right to freely exercise her religion. Plaintiffs claim against Butler County does not implicate the free exercise clause of the First Amendment. Butler County's policy establishing Christmas as a paid legal holiday for county employees is a neutral law that does not discriminate against a particular religion or set of religious beliefs or prohibit any conduct because it is undertaken for religious reasons. See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 532. Plaintiff ...

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