United States District Court, S.D. Ohio, Western Division
AMENDED REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE
Daniel Bower brings this action for violations of his federal
and state rights against defendants MetroParks of Butler
County ("Metroparks"), the Metroparks of Butler
County Board of Park Commissioners ("Board"), and
Jonathan Granville in his official and individual capacities.
(Id., ¶ 2). This matter is before the Court on
motions to dismiss the complaint under Fed.R.Civ.P. 12(b)(6)
filed by the Board (Doc. 9) and Granville (Doc. 10),
plaintiffs memoranda in response to the motions (Docs. 15,
16), and defendants' reply memoranda (Docs. 21, 22).
Allegations of the complaint
makes the following allegations in the complaint (Doc. 1):
Plaintiff is a citizen of the State of Ohio. (Id.,
¶ 10). Plaintiff began his employment with defendants as
Chief of Public Safety & Law Enforcement in June 2013.
(Id., ¶¶ 12, 14). The Board, a political
subdivision of the State of Ohio, is a public entity
comprised of public appointees. (Id., ¶ 3). The
Board is an employer under applicable federal and Ohio law.
(Id.). Granville is the Executive Director of
Metroparks and plaintiffs direct supervisor. (Id.,
¶ 12). At all relevant times, the Board "employed,
controlled, or had the right to control" Granville.
(Id., ¶ 4). Granville acted at all times
relevant to the complaint in his official capacity as an
agent for Metroparks and the Board, and/or in his individual
capacity, and in the course of his employment. (Id.,
relevant times, plaintiff has "been disabled by anxiety,
depression and PTSD (posttraumatic stress disorder)"
related to his military and police service. (Id.,
¶ 10). His disabilities significantly impacted his life
activities, including neurological functioning, thinking,
sleeping, and socialization; however, plaintiff remained
qualified for his employment position with defendants at all
relevant times. (Id., ¶¶ 11, 13).
Defendants were aware of plaintiff s disabilities because he
told Granville and the Board about his disabilities and he
requested leave and other accommodations, including
"changed supervisory methods," for his
disabilities. (Id., ¶ 14). Plaintiff also
qualified for leave under the Family and Medical Leave Act
(FMLA), but defendants refused to offer plaintiff FMLA leave.
(Id., ¶¶ 15, 16).
about June 6, 2016, Granville rated plaintiff as
"exceptional/highly effective" and recommended him
for a merit-based pay increase. (Id., ¶ 16).
Plaintiff received "excellent" performance
evaluations until August 2016, when he informed Granville
that "he was disabled and of the nature of his
disabilities." (Id., ¶ 17). Granville then
"threatened Plaintiff s job" and refused to
accommodate his disabilities or discuss doing so.
(Id., ¶¶ 19, 21). Granville admittedly
managed plaintiff more closely after learning of his
disabilities and "became openly hostile to
plaintiff." (Id., ¶ 20). Granville set
higher standards for plaintiff than for others and set
"unreasonable and arbitrary deadlines."
received no prior written warning or discipline before
receiving a negative performance review, which he claims was
a "sham performance review to justify recommending that
the Board terminate Plaintiff or force him to resign."
(Id., ¶¶ 23, 24). Granville told plaintiff
that he would be terminated during the review when plaintiff
refused to resign. (Id., ¶ 24). Plaintiff
"publicly protested Granville's recommendation to
the Board at a Board meeting" verbally and in writing,
telling the Board that Granville had discriminated against
him based on his disabilities and refused to accommodate his
disabilities. (Id., ¶¶ 25, 26). "On
information and belief, the Board terminated plaintiff
without investigating his complaint." (Id.,
¶ 27). Plaintiff was replaced by a non-disabled person
who did not take FM LA-protected leave. (Id., ¶
on these allegations, plaintiff brings a claim for disability
discrimination and retaliation under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.
(Id., ¶¶ 32-39, Count I) and under Ohio Rev.
Code Chapter 4112 (Id., ¶¶ 40-47, Count
II). Plaintiff alleges that he was fully qualified for his
position at all relevant times, he requested reasonable
accommodations for his disabilities, and defendants refused
to engage in the interactive process and denied his requests.
Plaintiff claims that defendants discriminated and retaliated
against him because he is disabled and they perceived him as
disabled; because he requested accommodations for his
disability; and/or because he complained they discriminated
against him based on his disability. Plaintiff alleges that
defendants treated him less favorably than non-disabled
people, refused to accommodate his disabilities, and
terminated his employment.
also brings a claim for interference and retaliation under
the FMLA, 29 U.S.C. § 2615, et seq. (Id.,
¶¶ 48-54, Count III). Plaintiff alleges he had a
serious health condition that qualified him for FMLA leave;
he notified defendants of his need for medical leave and took
medical leave; and defendants interfered with his rights
under the FMLA and retaliated against him. Plaintiff alleges
that defendants denied him FMLA leave, treated him less
favorably than employees who did not exercise their rights
under the FMLA, and terminated him in violation of
plaintiff brings a claim for violation of his rights under 42
U.S.C. § 1983. (Id., ¶¶ 55-60, Count
IV). Plaintiff alleges that defendant Granville, acting under
color of state law, violated his rights under the Fourteenth
Amendment to the United States Constitution to be free from
disability discrimination and retaliation. Plaintiff claims
that Granville's allegedly wrongful conduct
"'was the direct result of official practices and
customs established by Defendants MetroParks and the Board
that allowed discriminatory treatment against persons with
disabilities to go unchallenged, uninvestigated, and
unaddressed." (Id., ¶ 57).
claims that as to each violation of his constitutional and
statutory rights, defendants' conduct was intentional,
willful, wanton, malicious and in reckless disregard of
plaintiffs legal rights. (Id., ¶¶ 38, 46,
Rule 12(b)(6) standard
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)).
"[T]he statement need only give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
omitted) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level" and to "state a claim to relief that is
plausible on its face." Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). Although the court
must accept well-pleaded factual allegations as true for
purposes of a motion to dismiss, the court is "not bound
to accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555
(citing Papasan v. Attain, 478 U.S.
265, 286 (1986)).
The Board's motion to dismiss (Doc. 9)
Board moves to dismiss plaintiffs claims under the ADA, the
FMLA and Ohio Rev. Code § 4112.02 on the ground
plaintiff has not pled sufficient facts to permit an
inference that the Board was his "employer" as
defined under these statutes. The Board moves to dismiss
plaintiffs § 1983 claim on the theory an individual
cannot seek relief under § 1983 for a claim that is
cognizable under the ADA. Plaintiff argues in response that
he has sufficiently pled that the Board was his
"employer" as defined by the applicable statutes.
(Doc. 15). Plaintiff further contends that he brings a §
1983 claim for violation of his rights under the Equal
Protection Clause of the Fourteenth Amendment, which he may
pursue independently of his statutory claims. In reply, the
Board contends that plaintiff cannot bring a claim for
disability discrimination in violation of the ADA in the
guise of an Equal Protection claim under § 1983 and
further, plaintiff has not pled sufficient facts to state a
claim for violation of his equal protection rights. (Doc.
Whether the Board qualifies as plaintiff's
Board moves to dismiss plaintiffs claims under the ADA, the
FMLA, and the Ohio Civil Rights statute on the ground it is
not plaintiffs "employer" as defined under these
statutes and the relevant case law. (Doc. 9 at 5-11). The
Board argues that plaintiff has not pled factual allegations
that show the Board had sufficient control over the
performance of his job to qualify as an employer. The Board
also contends that the documents submitted in connection with
plaintiffs Equal Employment Opportunity Commission (EEOC)
charge show the Board was not involved in plaintiffs
day-to-day employment. The Board acknowledges that Ohio law
gives it some authority over plaintiffs employment; however,
the Board argues that it does not follow that "the Board
actually controlled the manner and means of [plaintiffs]
employment." (Id. at 10, citing Ohio Rev. Code
§§ 1545.07, 1545.13). Plaintiff argues in response
that he has adequately pled that the Board, which has the
authority under Ohio law to hire and fire park police
officers, terminated his employment. (Doc. 15 at 5-6, citing