United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
Michael R. Barrett, Judge.
matter is before the Court upon the Magistrate Judge's
February 16, 2018 Report and Recommendation
(“R&R”) (Doc. 31). Also before the Court is
Plaintiff's Motion for Oral Argument. (Doc. 37).
parties were given proper notice pursuant to Federal Rule of
Civil Procedure 72(b), including notice that the parties
would waive further appeal if they failed to file objections
to the R&R in a timely manner. See United States v.
Walters, 638 F.2d 947, 949-950 (6th Cir. 1981).
Plaintiff filed objections to the R&R. (Doc. 36).
Defendants filed a Response to Plaintiff's objections.
to S.D. Ohio R. Civ. 7.1(b)(2), oral argument is not
“deemed to be essential to the fair resolution of the
case because of its public importance or the complexity of
the factual or legal issues presented.” Therefore,
Plaintiff's Motion for Oral Argument (Doc. 37) is DENIED.
brings twenty causes of action based upon termination of her
employment as a magistrate and staff attorney for Judge
Gregory Stephens. In the R&R, the Magistrate Judge has
set forth the factual allegations in the Amended Complaint
(Doc. 31) and the same will not be repeated here except to
the extent necessary to address Plaintiff's objections.
Judge Gregory Stephens, Michael T. Gmoser, Dan Ferguson, and
Butler County, have moved for dismissal of Counts I, IV, VI,
VII, VIII, X, XI, XII, XIII, XIV, XV (in part), XVI, XVII,
XVIII, and XX based on failure to state a claim; and
dismissal of Count II for lack of jurisdiction.
Magistrate Judge recommends that (1) Defendants' Motion
To Dismiss the Complaint (Doc. 13) and Amended Motion To
Dismiss the Complaint (Doc. 14) be denied as moot due to the
filing of the Amended Complaint; (2) Plaintiff's Motion
to Stay a Decision on the Motion to Dismiss as to Count II of
the Amended Complaint only (Doc. 30) be DENIED;
Defendants' Motion for Partial Dismissal of the Amended
Complaint (Doc. 22) be DENIED as to Counts I and XV, and
GRANTED under Fed.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief can be granted as to Counts IV, VI,
VII, VIII, X, XI, XII, XIII, XIV, XVI, XVII, XVIII and XX and
under Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction as to Count II.
objections are limited to the dismissal of her claims for
violation of equal protection under 42 U.S.C. § 1983
(Count IV); violation of substantive due process under 42
U.S.C. § 1983 (Counts VI, VII, and VIII); intentional
infliction of emotional distress under Ohio law (Counts XVI
and XVII); defamation under Ohio law (Counts XI and XII); and
breach of contract and promissory estoppel under Ohio law
(Counts XIV and XVIII). Accordingly, the Court's
discussion is limited to those claims.
Standard of review
complaint may be dismissed according to Federal Rule of Civil
Procedure 12(b)(6), for a “failure to state a claim
upon which relief can be granted.” In reviewing a
motion to dismiss, the Court must accept the plaintiff's
allegations as true and construe the complaint in the light
most favorable to the plaintiff. Bassett v. NCAA,
528 F.3d 426, 430 (6th Cir. 2008). The complaint need not
contain detailed factual allegations, yet it must provide
“more than an unadorned,
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege: (1) the plaintiff was deprived of a right secured by
the Constitution or laws of the United States; and (2) that
the deprivation was caused by a person acting under color of
law. Webb v. United States, 789 F.3d 647, 659 (6th
Cir. 2015) (citing Marcilis v. Twp. of Redford, 693
F.3d 589, 595 (6th Cir. 2012)).
as the Sixth Circuit has explained: “It is not enough
for a complaint under § 1983 to contain mere conclusory
allegations of unconstitutional conduct by persons acting
under color of state law. Some factual basis for such claims
must be set forth in the pleadings.” Chapman v.
City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986).
Equal Protection (Count IV)
Equal Protection Clause of the Fourteenth Amendment, §
1, provides that no State shall “deny to any person
within its jurisdiction the equal protection of the
laws.” The Equal Protection Clause “prohibits
discrimination by government which either burdens a
fundamental right, targets a suspect class, or intentionally
treats one differently than others similarly situated without
any rational basis for the difference.” Bench
Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986
(6th Cir. 2012) (quoting TriHealth, Inc. v. Bd. of
Comm'rs, 430 F.3d 783, 788 (6th Cir. 2005)).
claims that Butler County violated her Equal Protection
rights by recognizing Christmas as a “legal
holiday” under Ohio Revised Code § 325.19(D)(1),
but not providing protection for non-Christians who seek time
off for different religious holidays. Ohio Revised Code §
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
Ohio Rev. Code § 325.19(D)(1).
takes issue with the analysis employed by the Magistrate
Judge. Plaintiff argues that her claim is based on her right
to the free exercise of her religion, ...