United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
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
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.
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
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).
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,
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).
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).
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).
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).
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.
Defendants' motion to dismiss (Doc. 22)
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.
Count II - Government Employee Rights Act of 1991
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
42 U.S.C. § 2000e-16c(b)(1), (c).
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,
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.
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).
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
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]." 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.
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
Count IV- Equal Protection Claim
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)).
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,
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).
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
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.
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).
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.
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
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)
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 ...