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Holliday v. City of Bay Village Service Department

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

March 30, 2018



          Dan Aaron Polster, United States District Judge

         Before the Court is a Motion to Dismiss filed by Defendant, City of Bay Village Service Department (“Motion”). (Doc #: 16.) The City asks the Court to dismiss the case for insufficient process and insufficient service of process under Rule 12(b)(4) and (5) of the Federal Rules of Civil Procedure. For the following reasons, the Court DENIES the Motion.


         On or about March 21, 2016, Plaintiff Daniel Holliday filed an administrative complaint with the EEOC alleging that his then-employer, Defendant City of Bay Village Service Department discriminated against him for failing to promote him from a part-time to a full-time position based on his hearing impairment. On March 20, 2017, he received the EEOC's Right-to-Sue notice. (Doc #: 8-1.) The EEOC reported that, based on its investigation, it was unable to conclude that the information obtained established a violation of the discrimination statutes. (Id. at 1.) The EEOC also stated that it did not certify that the City was in compliance with the discrimination statutes. (Id.) Finally, the EEOC notified Holliday that should he wish to file a lawsuit against the City in federal or state court, he must do so within 90 days of receipt of the notice. (Id.)

         On June 7, 2017, Holliday, representing himself, timely filed a form “Complaint for Employment Discrimination.” (Doc #: 1); Fed.R.Civ.P. 3. Therein, Holliday asserted that he brought the case under the Americans with Disabilities Act, 29 U.S.C. § 621 to 634 (“ADA”); that his disability is impaired hearing; that his employer failed to hire or promote him because he was hearing impaired; and that his employer was still discriminating against him. In the paragraph of the form Complaint asking him to “[s]tate briefly and precisely what damages or other relief the plaintiff asks the court to order, ” he responded:

Daniel worked for the City of Bay Village Service department for 10 years as seasonal. He sought full time employment and was not promoted 3 times. Individuals that were hired over him were friends of family, and family members that were already employed by the Service department. We seek to justify if any of the employees that were hired over Daniel did in fact have more qualifications than Daniel. And that they currently do jobs and tasks that were listed as being duties Daniel was said to be not qualified for.
Daniel took a picture of job duties and qualification[s] that were posted 8/28/15 for the Specialist II position. All of which we feel he was qualified for. Also, in previous hires if they did not have qualifications they were trained on the job.

(Doc #: 1 at 5-6.)

         The record shows that Holliday did not file a Civil Cover Sheet, the form that tells the Clerk's Office whether or not the case is related to another pending case or is the refiling of a closed case. Consequently, the Clerk's Office mailed a form Civil Cover Sheet to Holliday on June 7, 2017, which he promptly returned with the necessary information on June 14, 2017. (Doc #: 2.) On June 14, 2017, the Clerk's Office returned his check for $350 due to the incorrect filing fee, and he mailed a check with the correct filing fee of $400 to the Clerk of Court less than one week later. (See Non-Doc Entry of 6/22/17.) On June 22, 2017, the Clerk's Office mailed a Magistrate Consent Form to Holliday and, four days later, he filed the form consenting to the exercise of jurisdiction by the Magistrate Judge. (Doc #: 4.)

         Nearly six months later, on December 6, 2017, the Court issued an Order with a docket entry summarizing the contents of the Order:

Plaintiff shall have until January 7, 2018 to amend his Complaint to set forth a cognizable federal claim for relief. Plaintiff is notified that if a legally sufficient amended Complaint is not filed within the time permitted, this action will be dismissed. Furthermore, Plaintiff is reminded that he is responsible for having the Summons, and Amended Complaint served on the Defendant within the time allowed by Rule 4(m) of the Federal Rules of Civil Procedure and in accordance with the procedure described in Rule 4(j) of the Federal Rules of Civil Procedure. Failure to perfect service on the Defendant in a timely manner will result in dismissal of the Complaint.

(Doc #: 5 docket entry.) On January 3, 2018, Attorney Michael Harvey filed a Motion for Enlargement of Time stating that, in attempting to comply with the Court's order, Holliday had reached out to him and asked for assistance. (Doc #: 6.) Counsel asked for an extension to January 26, 2018 to review the EEOC filings, the Right-to-Sue notice, and the case in general to determine what, if anything, should be filed to comply with the Court's Order. (Id.) The Court granted the Motion. On January 25, 2018, Attorney Harvey filed a Motion for One Last Enlargement of Time to File an Amended Complaint. (Doc #: 7.) Counsel stated that he was unable to actually meet with Holliday until recently due to his work schedule, and he needed more information and time “to help Holliday decide what it is he hoped to accomplish in federal court and to make a decision that was most prudent under the circumstances.” (Id. at 2.) The Court granted an extension through February 9, 2018.

         On February 9, 2018, Holliday, now represented by Attorney Harvey, filed an Amended Complaint and a Supplemental Civil Cover Sheet. (Doc #: 8.) The Amended Complaint alleges that Daniel Holliday worked as a part-time employee of the Bay Village Service Department for approximately 10 years hoping for an opportunity to be hired full-time. During his employment, three full-time positions were posted for which he was qualified and he applied for all of them. The Service Department, in return, did not extend him a single interview. Despite his hearing impairment, Holliday became a permanent part-time employee of the Service Department in 2013 and was in charge of seasonal workers. He was neither prohibited nor restricted from doing any of the jobs that other Service Department employees do, and he received a pay increase. Holliday says he was targeted by the Safety Service Director's son, Donnie Landers, who harassed, tormented and embarrassed him due to his hearing impairment, refused to provide minor accommodations for him in the field, and was instrumental in keeping Holliday from being interviewed or achieving full-time employment in the Service Department. Holliday asserts that nondisabled persons were hired for the full-time positions who either were no more qualified than Holliday, or had to be trained on the job.

         On March 7, 2018, Holliday filed a Notice of Service stating that he served the Amended Complaint, the Civil Summons and the Magistrate Consent form on Defendant by U.S. Mail and email on March 7. (Doc #: 11.) On March 19, 2018, Holliday filed another Notice of Service stating that he served the Amended Complaint, Civil Summons and Magistrate Consent form on Defendant by certified mail ...

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