The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RONALD JAMES FOSTER, JR., ) CASE NO. 5:23 CV 1309
)
Plaintiff, ) JUDGE DONALD C. NUGENT
)
v. )
) MEMORANDUM OF OPINION
MIKE DEWINE, et al., )
)
Defendants. )
This case is before the Court on Defendants’ Motion to Dismiss (Doc. No. 7). Plaintiff
opposed the Motion (Doc. No. 12). For the reasons stated below, the Motion is granted and this
case is dismissed.
Factual and Procedural Background
Plaintiff's Complaint is difficult to decipher. Due to the manner in which Plaintiff
organized his thoughts, it is difficult to determine the chronology of the events described. He
indicates that in 2022, he was employed as a Unit Manager at the Ohio Indian River Juvenile
Correctional Facility. He alleges that there were numerous security concerns involving inmate
gang members. He states he was assaulted by two of these inmates at the facility on June 9, 2022
and sustained permanent injuries. He contends this was not an isolated incident of violence in
the Indian River Juvenile Correctional Facility, and other staff and youth inmates were targeted
for attacks. He alleges youth inmates reported that high ranking Correctional Facility staff
members shared details of confidential conversations concerning Heartless Felon gang activity
with the gang members they had implicated. Plaintiff also alleges that gang members were given
special privileges by these officials. He claims this placed both inmates and staff in danger.
Plaintiff claims that he first submitted a report of his concerns to Department of Youth
Services Assistant Director Ginine Trim. He bypassed the leadership within the prison as these
individuals were named in his report as providing preferential treatment to gang members. He
claims Trim initially attempted to dissuade him from filing a written report, and suggested they
discuss his concerns in person. After he declined this offer and sent his report, he contends Trim
failed to take any action on his allegations. Instead, Trim classified the report as an Equal
Employment Opportunity (“EEO”) allegation. Plaintiff claims the report did not contain any
EEO allegations. The report was referred to human resources for an EEO determination.
Plaintiff claims that the Human Resources Manager tried to transfer him to the Cuyahoga Hills
Juvenile Correctional Facility in Highland Hills, Ohio, but Plaintiff declined, saying that
relocation would present an undue hardship for him. He claims that the Human Resources
Manager told him that he could transfer in the future if he changed his mind. He alleges that
when he later requested transfer to the Cuyahoga Hills Juvenile Correctional Facility for safety
reasons, Trim denied the move, stating that Plaintiff was not in any danger and should act
professionally. Plaintiff alleges he made several attempts to speak with Trim, but she refused to
return his telephone calls. On September 2, 2022, she sent a text message to his personal phone
saying she would return his calls when she returned from her vacation.
Dissatisfied with the lack of response from Trim, Plaintiff sent a lengthy report to
Department of Youth Services Director Amy Ast on September 21, 2022, alleging serious safety
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concerns and detailing the allegations of major misconduct by high ranking staff at the facility.
He attached letters from youth inmates indicating they were afraid for their lives due to
conditions within the prison. Plaintiff also included allegations against Trim in his report to Ast.
The allegations in the report were sufficiently serious that Ast requested the Chief
Inspector’s office to investigate the allegations. Plaintiff alleges the Indian River Juvenile
Correctional Facility Superintendent James Darnell, the Direct Deputy Superintendent Charles
Wilson and the Gang Intervention Specialist Shawn Anders were placed on administrative leave
pending the result of the investigation. Four days after Plaintiff submitted the report, inmates
attempted to riot and temporarily gained control of a portion of the facility. They instigated
another riot on October 22, 2022.
Plaintiff alleges that although Ast acted on his report, she retaliated against him for
submitting it by prompting the Chief Inspector to investigate him as well as the others named in
the report. Plaintiff also claims the Chief Inspector provided a copy of his confidential report to
the subjects of that report arguably placing him in danger. He states Ast provided a copy of the
report to Trim, knowing that the report contained allegations against her.
Plaintiff claims Trim also retaliated against him for filing the report and including
allegations against her. He claims Trim initially offered him reassignment to a local library, the
Department of Youth Services Central Office or the ODRC until the investigation into his report
was completed. He states she also indicated to him that the Deputy Director of Facility Support,
Chris Freeman, would work him to provide him with a work itinerary. Plaintiff contends that
after Trim learned about her implication in the report, she informed Plaintiff that she, and not
Freeman, would be providing him with his work itinerary. She told him she would meet with
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him in the library the following day, September 22, 2022. Plaintiff does not allege whether he
met with Trim as planned. He states that on September 23, 2022, Trim sent him a text telling
him to “enjoy his vacation.” He does not provide additional information regarding his time away
from the office; however, he states that on September 26, 2022, he submitted a request for
emergency leave. He claims that leave request was approved by Trim.
Plaintiff remained on leave through October 2022. He indicates that there was an order
excluding him from work and preventing him from entering the facility. He also mentions a two
day suspension related to the investigation. He does not elaborate on these allegations. He
claims that in November 2022, Trim directed executive staff to send him a certified letter
demanding that he immediately return to work and canceling his leave. Plaintiff claims Ast
terminated his employment on November 25, 2022, and listed the reason for termination as job
abandonment. Plaintiff contends this made him ineligible for unemployment benefits.
Plaintiff asserts that the Defendants retaliated against him for filing his reports, in
violation of Title VII, 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621. Defendants filed a Motion to Dismiss, asserting that Plaintiff failed
to state a claim upon which relief may be granted under these two statutes. They contend that the
claims asserted against the Defendants in their individual capacities fail because the individual
Defendants do not meet the statutory definition of “employer” under either Title VII or the
ADEA. They contend that the claims asserted against the Defendants in their official capacities
also fail because Plaintiff has not alleged facts suggesting the Defendants engaged in conduct
prohibited by either of these statutes. They also argue that the Defendants are immune from
damages under the Eleventh Amendment for Plaintiff's ADEA claims. Plaintiff responded to
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their Motion by insisting that his claims under Title VII and the ADEA were proper and that he
had stated a viable cause of action.
Standard of Review
When deciding a Motion to Dismiss under Federal Civil Rule 12(b)(6), the function of
the Court is to test the legal sufficiency of the Complaint. See Mayer v. Mulod, 988 F.2d 635,
638 (6th Cir. 1993). When determining whether the Plaintiff has stated a claim upon which relief
can be granted, the Court must construe the Complaint in the light most favorable to the Plaintiff,
accept all factual allegations as true, and determine whether the Complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 US.
544, 555 (2007). The Plaintiff's obligation to provide the grounds for relief “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. Although a Complaint need not contain detailed factual allegations, its “factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the Complaint are true.” Jd. The Court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Court in Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) further explained the
“plausibility” requirement, stating that “a 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.” Igbal, 556 U.S. at 678. Furthermore, “the plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
Defendant acted unlawfully.” Jd. This determination is a “context-specific task that requires the
reviewing Court to draw on its judicial experience and common sense.” Jd. The Sixth Circuit has
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held that a Court may consider allegations contained in the Complaint, as well as exhibits
attached to or otherwise incorporated in the Complaint, all without converting a Motion to
Dismiss to a Motion for Summary Judgment. FED. R. CIV. P. 10(c); Weiner v. Klais & Co., 108
F.3d 86, 89 (6th Cir. 1997).
Discussion
Plaintiff fails to state a claim for relief under either Title VII or the ADEA. As an initial
matter, Plaintiff cannot bring either of these claims against the Defendants in their individual
capacities. Title VII provides that it is unlawful for an employer to discriminate against an
individual because of that individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e—2(a)(1). For purposes of Title VII, an employer is “a person engaged in an industry
affecting commerce who has fifteen or more employees for each working day in each twenty or
more calendar weeks in the current or preceding calendar year, and any agent of such person ....”
42 U.S.C. § 2000e(b). An individual employee/supervisor who does not otherwise qualify as an
“employer” may not be held liable under Title VII. Wathen v.. General Electric Co., 115 F.3d
400 (6th Cir. 1997). The Sixth Circuit has applied the holding in Wathen to claims brought
under Title VII’s sister civil rights statutes, including the ADEA. See Hiler v. Brown, 177 F.3d
542, 546 (6th Cir.1999); Liggins v. State of Ohio, No. 99-3535, 2000 WL 178420 * 2 (6th Cir.
Feb. 8, 2000 )(stating that named defendants, sued in their individual capacity, were not included
within the statutory definition of “employer” under the ADEA). None of the individual
Defendants qualifies as Plaintiff's employer under either statute.
Plaintiff’s claims against the Defendants in their official capacities are the equivalent of
claims asserted against the State of Ohio. Will v. Michigan Department of State Police, 491 U.S.
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58, 71 (1989). The State of Ohio and the Defendants sued in their official capacity are entitled
to absolute immunity under the Eleventh Amendment for suits brought under the ADEA. Kimel
v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000).
Although Congress abrogated Eleventh Amendment immunity for Title VII claims by
including States in the statutory definition of “employer,” Freeman v. Michigan Dep't of State,
808 F.2d 1174, 1177-78 (6th Cir. 1987), Plaintiff fails to allege facts to state a plausible claim
for relief under Title VII. While retaliation is actionable under Title VII, it must be retaliation for
making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing
into conduct that is prohibited by Title VII. 42 U.S.C. § 2000e—3(a). Title VII prohibits
discrimination on the basis of race, color, religion, sex, or national origin with respect to
compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e—2. Plaintiff is
not claiming that the Defendants retaliated against him because he reported discrimination on the
basis of race, color, religion, sex, national origin or age. Plaintiff admits in his Complaint that he
“did not make any EEO accusations in his report.” (Doc. 1-1 at PageID #: 10). There are no
allegations in the Complaint that suggest Plaintiff has a viable retaliation claim under Title VII.
Conclusion
Accordingly, Defendants’ Motion to Dismiss (Doc. No. 7) is granted and this action is
dismissed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith.’
IT IS SO ORDERED.
' 28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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DONALD C. NUGENT (
UNITED STATES DISTRICT JUDGE
Dated: Wblnde 14 LY L
vy
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