United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER UNITED STATES DISTRICT COURT
the Court are two motions: Defendant James Budzik's
Motion to Dismiss, Doc #: 14, and the remaining
defendants' (“District Defendants”) joint
Motion for Partial Judgment on the Pleadings, Doc #: 20. For
the following reasons, Budzik's Motion to Dismiss and the
District Defendants' Motion for Partial Judgment on the
Pleadings are DENIED WITHOUT PREJUDICE.
March 6, 2018, Plaintiff Rebecca Buddenberg filed the instant
civil rights action, pursuant to both federal and state
anti-discrimination laws. Doc #: 1. On March 12, 2018, she
filed an Amended Complaint. With the Court's permission,
Buddenberg filed a Second Amended Complaint on June 18,
2018. Buddenberg asserts claims against eight
defendants: the Geauga County Health District (the
“District”), Geauga County Health Commissioner
Robert K. Weisdack, District employee Alta Wendell, the
District's attorney James Budzik, and Geauga County Board
of Health (the “Board”) members Timothy Goergen,
David Gragg, Catherine Whitright, and Christina Livers
(collectively, the “Board Members”). Compl.
¶¶ 4-8. On May 3, 2018, Budzik filed a motion to
dismiss all six claims against him. Doc #: 14. On May 11,
2018, the District Defendants filed a joint motion for
partial judgment on the pleadings. Doc #: 20. Buddenberg
filed an Opposition on June 8, 2018. Doc #: 29. Budzik and
the District Defendants filed their Replies on June 22, 2018.
Doc #: 32 and 33.
motion to dismiss, the court construes all well-pleaded facts
in the light most favorable to the plaintiff. Johansen v.
Presley, 977 F.Supp.2d 871, 876 (W.D. Tenn. 2013).
was employed by the District from February 2, 2015 to May 27,
2017. Compl. ¶ 11. She worked as the District's
fiscal coordinator until her March 21, 2017 demotion.
Id. As fiscal coordinator, Buddenberg was
responsible for various aspects of the District's fiscal
management and human resources. Id. ¶¶
12-13. Her ordinary duties did not include reporting ethical
and policy violations to the Board. Id. ¶ 14.
Commissioner Weisdack hired Buddenberg and was her direct
supervisor-except from April 2016-February 2017, when Dan Mix
was Buddenberg's direct supervisor. Id. ¶
15. Mix reported direct to Commissioner Weisdack.
Id. ¶ 16. Buddenberg received positive
performance evaluations and was well-liked by her co-workers
for the first year and a half that she worked at the
District. Id. ¶¶ 17-19.
October 24, 2016, Buddenberg reported to the Board that
Commissioner Weisdack had engaged in unequal pay practices
and ethical misconduct, and that he failed to comply with the
District's personnel policies. Compl. ¶ 26. She
submitted a written report to the Board detailing her
concerns on November 13, 2016. Id. ¶ 32. Within
less than forty-eight hours of her initial report,
Commissioner Weisdack instructed Mix to change
Buddenberg's working hours. Id. ¶ 33.
Buddenberg had negotiated flexible hours to accommodate
getting a Bachelor's degree and taking care of her
grandson after work. Id. Commissioner Weisdack
provided no explanation for the change in Buddenberg's
work schedule and did not adjust any other employee's
schedule, including those who had similarly flexible hours.
Id. ¶¶ 34-35. As a result, Buddenberg was
forced to quit school and could no longer provide adequate
childcare for her grandson. Id. ¶ 33. Mix told
Buddenberg that Commissioner Weisdack changed her hours
because he was mad at her for going to the Board and he
wanted to get rid of her. Id. ¶ 36.
Commissioner Weisdack began threatening Buddenberg and
disparaging her to her co-workers. Id. ¶ 37.
communicated Commissioner Weisdack's retaliatory behavior
to the Board, both orally and in writing, on several
occasions. Id. ¶ 40. The Board took no action
to protect Buddenberg and Commissioner Weisdack's
campaign of retaliation continued. In January 2017, Mix was
forced to resign for supporting Buddenberg. Id.
¶ 62. Buddenberg reported Commissioner Weisdack's
retaliation toward Mix to Board Member Livers on February 1,
2017. Id. ¶ 64. On February 15, 2017,
Buddenberg reported the retaliation to the EEOC. Id.
¶ 67. The District received notice of her EEOC filing on
February 24, 2017. Id. ¶ 68. Four days later,
Commissioner Weisdack issued Buddenberg a Notice of Proposed
Disciplinary Action (the “Notice”), alleging
eight policy violations and setting a hearing for March 3,
2017. Id. ¶ 72. Budzik helped Commissioner
Weisdack draft the Notice. Id. ¶ 73. In issuing
the Notice, the District failed to comply with its own
progressive disciplinary policy. Id. ¶¶
77-79. Further, all of the allegations against Buddenberg
were baseless or applied only against Buddenberg.
Id. Budzik conducted the March 3, 2017 hearing,
knowing that Commissioner Weisdack had retaliated against
Buddenberg for protected activity and that all policy
violation allegations against her were baseless. Id.
the nearly two-hour long hearing, Budzik offered to settle
the matter if Buddenberg would accept a demotion, a pay
reduction of nearly $1, 000/month, and drop all retaliation
claims, including her EEOC charge. Id. ¶ 94. At
a March 7, 2017 Board meeting, Budzik recommended that the
Board take disciplinary action against Buddenberg based on
the allegations that he knew to be false and were rebutted by
Buddenberg during the March 3, 2017 hearing. Id.
¶ 98. On March 16, 2017, the District issued an Ohio
Revised Code § 124.34 Order (“Order”),
drafted by Commissioner Weisdack and Budzik, finding
Buddenberg guilty of nearly all of the allegations in the
Notice. Id. ¶ 99. Buddenberg was suspended for
three days, demoted to a clerical position, and her pay was
cut nearly in half. Id. ¶ 100 Commissioner
Weisdack continued to retaliate against Buddenberg until she
resigned from the District on May 27, 2017. Id.
same standard for deciding a Rule 12(b)(6) motion to dismiss
applies to a Rule 12(c) motion for judgment on the pleadings.
Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011). A
12(b)(6) motion tests the sufficiency of the complaint. To
survive a Rule 12(b)(6) motion to dismiss, “a 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
on its face “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).
moved to dismiss Claims 3-7 and 9 against him. The District
Defendants moved to dismiss Claims 6-8 against them. The
Court will address each claim in turn.
Fair Labor Standards Act (“FLSA”) Retaliation
first argues that Buddenberg cannot bring an FLSA retaliation
claim against him because he is the District's outside
legal counsel and not her employer. Mot. 5. The
anti-retaliation provision of the FLSA prohibits “any
person” from “discriminat[ing] against any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under
[the FLSA.]” 29 U.S.C. § 215(a)(3). The FLSA
defines a “person” as “an individual,
partnership, association, corporation, business trust,
legal representative, or any organized group of
persons.” 29 U.S.C. § 203(a) (emphasis added).
Thus, by its plain language, § 215(a)(3) prohibits legal
representatives like Budzik from retaliating against
employees. However, § 215(a)(3) only makes retaliatory
conduct unlawful; it does not address the penalties for a
person engaging in retaliation. The penalties for violating
§ 215(b)(3) are delineated in § 216. 29 U.S.C.
§ 216. Section 216(b) grants an employee a private right
of action against any “employer” who violates
§ 215(a)(3). 29 U.S.C. § 216(b). So, while
“any person” is proscribed from ...