Sizemore v. Edgewood Board of Education

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LESLIE SIZEMORE,

Plaintiff,

Case No. 1:19-cv-555

v. JUDGE DOUGLAS R. COLE

EDGEWOOD BOARD OF

EDUCATION, et al.,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Defendants Amy Ashcraft, Beth

Benjamin, Gary Gabbard, Jim Wirtley, Tom York (the “Board Members”), David

Slamer (“Principal Slamer”), and the Edgewood Board of Education’s (the “Board”)

Partial Motion to Dismiss Plaintiff’s Second Amended Complaint. (“Partial Motion,”

Doc. 24). (These Defendants are collectively referred to as the “School Defendants,”

and the subset of the School Defendants consisting of the individual Board Members

and the Principal are collectively referred to as the “Individual School Defendants.”).

The only other Defendant, Daniel Benjamin, previously answered (see Doc. 23) and

does not join this Partial Motion. This Court heard oral arguments on this Partial

Motion, at Plaintiff’s request, on March 4, 2020. For the following reasons, the Court

GRANTS the Partial Motion.

BACKGROUND

A. Sizemore’s Allegations In Her Second Amended Complaint.

The allegations in this case, taken from the Second Amended Complaint, stem

from the alleged sexual harassment that Leslie Sizemore (“Sizemore”), a janitor at

Edgewood Middle School, suffered at the hands of Daniel Benjamin (“Benjamin”), a

fellow janitor. (Second Am. Compl. (“SAC”), ¶¶ 17, 20–29, Doc. 21, #204–071).

Sizemore alleges that, throughout her employment, from May 24, 2016, through

August 10, 2018, Benjamin would frequently text her lewd, offensive, and threatening

messages and make obscene gestures in her direction. (Id. at ¶¶ 17, 21–22, 41, #204,

207). She claims that, starting “[i]n or about September of 2017 and continuing

throughout her employment,” she reported this conduct to her supervisor, Teresa

Lewis, who is not named in this action. (Id. at ¶ 26, #205). Sizemore also alleges that

she “repeatedly informed Defendant Board and Teresa Lewis that she did not want

to work with Mr. Benjamin,” but, unlike her allegation as to Lewis, she does not allege

that she told the Board (or any of its members) of Benjamin’s purported misconduct.

(Id. at ¶ 38, #206–07). That is, she does not allege that she told any Board member

why she did not want to work with Benjamin.

Sizemore also alleges that, sometime around “Nov [sic] of 2017,” she received

a report from Student B about potential misconduct by Benjamin, specifically that he

took a photo of Student A with his cell phone and made a “comment … to be of a

sexual nature based on its intonation.” (SAC at ¶¶ 30–31, #205–06). She reported this

1 Reference to PageID Number.

too, to Teresa Lewis, Principal Slamer, and Assistant Principal Ruether. (Id. at ¶ 32,

#206). Shortly thereafter, all the parties met, along with Student B’s parents. (Id. at

¶ 33). Ultimately, Sizemore learned that the parents declined to pursue the matter.

(Id. at ¶ 37). Sizemore also alleges, with no supporting facts, that school officials

“failed to inform the Police or Sheriff” about any of this. (Id. at ¶ 36).

In addition to the conduct described above that allegedly occurred “throughout

her employment,” Sizemore further alleges that, on one occasion in July 2018,

Benjamin sexually assaulted her in a supply closet while the two were getting

cleaning supplies. (SAC at ¶¶ 38–39, #206–07). Sizemore asserts that, on August 10,

2018, she notified “Defendant’s Human Resource [sic] Department” of that incident

of sexual harassment. (Id. at ¶ 42, #207). After informing Human Resources,

Sizemore left the school building and she never returned to work. (Id. at ¶ 43).

Instead, she sued the Board, the Board Members (solely in their official capacities),

Principal Slamer (solely in his official capacity), and Benjamin.

After Sizemore filed her initial Complaint (Doc. 1), she amended it (Doc. 2),

and the School Defendants responded by filing their first Partial Motion to Dismiss

(Doc. 11). Sizemore amended her Complaint again, this time with leave of court. (Doc.

21). Based on the same core facts, but with a few additions,2 Sizemore reasserted the

same three claims as before, which are the claims relevant to the instant Motion.

2 In the School Defendants’ first Partial Motion to Dismiss, they raised an issue about

Sizemore’s First Amended Complaint being time-barred. (Defs.’ First Partial Mot. to Dismiss,

Doc. 11, #107–08). In the instant Motion, the Defendants note Sizemore made “new factual

allegations” that may impact this time-bar argument. (Defs.’ Partial Mot. at #238).

Defendants therefore reserved that argument for summary judgment. (Id.).

First, in Count I of her Second Amended Complaint, Sizemore alleges Title VII

and Ohio Revised Code Chapter 41 violations against the School Defendants, i.e., the

Board, the Board Members (in their official capacities), and Principal Slamer (in his

official capacity), asserting discrimination based on sex and sexual harassment. (SAC

at ¶¶ 52–54, #208–09). Then, for Count II, she alleges another Title VII and Ohio

Revised Code Chapter 41 violation, against those same defendants (in those same

capacities), for retaliation and “constructive discharge.” (Id. at ¶¶ 55–58, #209). Last,

in Count III, Sizemore asserts that “Defendant Edgewood Schools,” acting under color

of state law, violated her constitutional rights, for which she seeks relief under

42 U.S.C. § 1983. (Id. at ¶¶ 59–71, #210–11).3

B. The School Defendants’ Second Partial Motion To Dismiss.

The School Defendants responded to the Second Amended Complaint by filing

a second Partial Motion to Dismiss. (Defs.’ Second Partial Mot. (“Defs.’ Partial Mot.”),

Doc. 24, #233–46). In it, the individuals who are part of this group make six

arguments: (1) Title VII does not impose individual official-capacity liability on them

(an argument that they raise both as to the sex discrimination claim (Count I) and

the retaliation claim (Count II)); (2) they are not liable as individuals in their official

capacities for discrimination under Ohio Revised Code Chapter 41; (3) the Title VII

retaliation claim against them fails on the merits; (4) the state law retaliation claim

against them fails on the merits; (5) naming them in the § 1983 claim in their official

3 Sizemore also asserts two other causes of action, sounding in negligence, against Benjamin,

the person who allegedly engaged in the workplace misconduct. Those claims are not at issue

here.

capacity was duplicative of the claim against the Board, and thus should be

dismissed; and (6) the § 1983 official-capacity claim against them should be

dismissed. (Id. at #238–39). They further argue that Sizemore’s failure to respond to

arguments one, two, and four in her response (Defs.’ Reply, Doc. 18), to the initial

motion to dismiss (Doc. 11), means she has not met her burden as to those arguments.

(Defs.’ Partial Mot. at #239). For its part, the remaining School Defendant, i.e., the

Board, separately argues that three of the claims against it should be dismissed,

namely: (1) the Title VII retaliation/constructive discharge claim (Count II), (2) the

state law retaliation/constructive discharge claim (the remaining aspect of Count II),

and (3) the § 1983 claim. (Id.).4

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a cause

of action for “failure to state a claim upon which relief can be granted.” Such a motion

“is a test of the plaintiff’s cause of action as stated in the complaint, not a challenge

to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d 950, 958–

59 (6th Cir. 2005). Therefore, the Court must construe the complaint in the light most

favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem

Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). But a pleading must

offer more than mere “labels and conclusions,” because “‘a formulaic recitation of the

elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

4 The Board does not seek dismissal of Count I, the sex discrimination/harassment claim

under Title VII and corresponding state law. That is not to suggest that the Board agrees

that this claim has merit, but only that the Board does not argue that it fails as a matter of

law.

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Jones v.

Montgomery Cty. Dep’t of Jobs & Family Servs., No. 3:18-cv-37, 2020 WL 529297 (S.D.

Ohio Feb. 3, 2020).

Instead, a complaint “must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 570); White v. Coventry Health & Life Ins. Co., 680 F. App’x

410, 413 (6th Cir. 2017). 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). To survive a Rule 12(b)(6) motion, a complaint must “raise

a right to relief above the speculative level” into the “realm of plausible liability.”

Twombly, 550 U.S. at 555.

In the discrimination context, a plaintiff is not required to prove a prima facie

case to survive a motion to dismiss. See Swierkiewciz v. Sorema N.A., 534 U.S. 506,

511 (2002) (noting the Supreme Court “has never indicated that the requirements for

establishing a prima facie case under McDonnell Douglas also apply to the pleading

standard that plaintiffs must satisfy in order to survive a motion to dismiss”); Jackson

v. Crosset Co., 33 F. App’x 761, 762 (6th Cir. 2002) (“[T]he McDonnell Douglas

framework is an evidentiary standard, not a pleading standard.”). In fact, the

Supreme Court has rejected the argument that a Title VII complaint is subject to any

kind of heightened pleading standard, because this would “too narrowly constric[t]

the role of the pleadings.” Swierkiewciz, 534 U.S. at 511 (quotation omitted). Instead,

“the ordinary rules for assessing the sufficiency of a complaint apply.” Id. This does

not mean the pleading rules are lessened, though, either. See Smith v. Wrigley Mfg.

Co., LLC, 749 F. App’x 446, 449 (6th Cir. 2018) (noting Swierkiewciz “offers no

gateway for a plaintiff to side-step the plausibility standard laid out in Twombly and

Iqbal”). While true that Sizemore’s Second Amended Complaint “need not present

detailed factual allegations, it must allege sufficient factual content from which a

court, informed by its judicial experience and common sense, could draw the

reasonable inference that [the defendants] discriminated against [Sizemore] with

respect to her compensation, terms, conditions, or privileges of employment, because

of her … sex[.]” See Keys v. Humana, Inc., 684 F.3d 605, 609–10 (6th Cir. 2012)

(quotations and citations omitted).

Moreover, while a plaintiff need not establish a prima facie case at the pleading

stage, the elements of a prima facie case are nonetheless aspects to consider when

determining the plausibility of a discrimination claim. See, e.g., Towns v.

Memphis/Shelby Cty. Health Dep’t., No. 17-cv-02626, 2019 WL 639050, at *4 (W.D.

Tenn. Jan. 25, 2019), adopting R. & R., 2019 WL 639025 (W.D. Tenn. Feb. 14, 2019)

(“While a Title VII plaintiff need not establish a prima facie case at the motion to

dismiss stage, courts have looked to the prima facie requirements when determining

whether a Title VII plaintiff has pleaded an actionable claim.”); White v. Adena

Health Sys., No. 2:17-cv-593, 2018 WL 3377087, at *4 (S.D. Ohio July 11, 2018)

(discussing the prima facie elements in the context of a motion to dismiss several

Title VII claims). Still, the Court must ultimately determine plausibility by

employing its “judicial experience and common sense.” Iqbal, 556 U.S. at 678.

DISCUSSION

The School Defendants move to dismiss, in whole or in part, nearly every claim

asserted against them. For the Individual School Defendants, many of their

arguments turn on Sizemore having named them individually (albeit solely in their

official capacities), while simultaneously suing the Board itself. Beyond that, they

also argue that she has failed to meet the requisite pleading standard as to the

substance of her claims against them for various reasons. Separately, the Board

contends that Sizemore has failed to adequately plead the substance of the claims she

asserts against the Board in Counts II and III of her Second Amended Complaint.

The Individual School Defendants’ argument that Sizemore cannot bring

official-capacity claims against them as individuals, while simultaneously suing the

Board, is a threshold issue that cuts across all of the substantive claims, so the Court

begins there. As explained below, the Court’s analysis is made easier by Sizemore

having conceded that the individual claims should be dismissed, so long as the Board

is not an arm of the State. The Board is not, and thus her concession controls. And,

as her concession applies to all of the individual claims, the Court need not, and thus

does not, consider the Individual School Defendants’ other arguments for dismissal.

Moreover, as there are no facts that Sizemore could allege that would change the

Board’s legal status under state law, the Court dismisses these claims with prejudice.

As for the Board, the Court finds that Sizemore has failed to allege the facts

necessary to plausibly assert either (1) a Title VII retaliatory discharge claim (or

corresponding state law claim), or (2) § 1983 claim, against the Board. Thus the Court

grants the Board’s Motion to dismiss Counts II and III of the Complaint, but does so

without prejudice, as discussed below. As the Board has not moved to dismiss the

Title VII (and corresponding state law claim) set forth in Count I, this Order does not

impact that Count.

A. Sizemore Concedes That The Official-Capacity Claims Against The

Individual School Defendants Should Be Dismissed Unless The Board

Is An Arm Of The State, Which It Is Not.

Sizemore expressly concedes that, should the Court determine the Board is not

an “arm of the state,” her official-capacity claims against the Individual School

Defendants under Title VII, Chapter 41, and § 1983 all warrant dismissal. (See Pl.’s

Mem. in Resp. (“Pl.’s Resp.”), Doc. 25, #260). Sizemore explains that she sued these

individuals in their official capacities solely as a proactive undertaking to address

any potential problems that may arise if the Board were to claim that it was an arm

of the state, and thus subject to Eleventh Amendment immunity in federal court.

Sizemore preemptively sought to avoid that prospect by naming the Board Members

and Principal Slamer in their official capacities, pursuant to Ex Parte Young. 209 U.S.

123, 124–25 (1908).5

5 Ex Parte Young is an exception to Eleventh Amendment sovereign immunity that permits

a federal court to enjoin a “state official” from violating federal law. Lawson v. Shelby Cty.,

211 F.3d 331, 335 (6th Cir. 2000). “The idea behind this exception is that a suit against a

state officer is not a suit against the state when the remedy sought is an injunction against

an illegal action, for an officer is not acting on behalf of the state when he acts illegally.” Id.

Whatever the potential merits of Sizemore’s approach generally, it was an

unnecessary undertaking in this case, and thus by her own admission, the individual

claims are properly dismissed. That is because, when it comes to local school boards

in Ohio, state law—as well as precedent from the United States Supreme Court, this

District, and the Ohio Supreme Court—clearly addresses the issue and provides that

a school board is a political subdivision, not an arm of the state. See Ohio Rev. Code

§ 2744.01(F); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

280 (1977) (“Under Ohio state law the ‘State’ does not include ‘political subdivisions,’

and ‘political subdivisions’ do include local school districts. ... [A] local school board

such as petitioner is more like a county or city than it is like an arm of the State.”);

Bronson v. Bd. of Educ. of City Sch. Dist. of City of Cincinnati, 578 F. Supp. 1091,

1097 (S.D. Ohio 1984) (noting “Ohio’s local school districts are in fact separate and

autonomous entities” from the state); Adamsky v. Buckeye Local Sch. Dist., 653

N.E.2d 212, 213 (Ohio 1995) (citing Ohio Rev. Code § 2744.01(F)) (noting “a school

board is a political subdivision” because it is included in the Political Subdivision Tort

Liability Act, which provides statutory immunity for political subdivisions not

already shielded by Eleventh Amendment immunity).

Given Sizemore’s express concession (see Pl.’s Resp. at #260), coupled with the

well-settled law showing that the Board is not an arm of the state, the Court

concludes that dismissing the official-capacity claims against the Individual School

Defendants is proper. Sizemore’s concession in this regard applies equally to all of

This exception only allows for injunctive relief and attorneys’ fees, not monetary damages.

Id.

the Title VII, Chapter 41 and § 1983 official-capacity claims (i.e., the official-capacity

individual claims under Counts I, II, and III). (Id.). Moreover, as there is no possible

set of additional facts that could change this outcome, the Court dismisses the official-

capacity claims against these individual defendants with prejudice.6

B. The Board Is Entitled To Dismissal Of Both Sizemore’s Title VII

Retaliation And § 1983 Claims.

The pending motion also seeks dismissal of Count II (Title VII and Chapter 41

retaliatory discharge/constructive discharge claim) and Count III (§ 1983 claim)

against the Board. As to the former, the Court finds that Sizemore has failed to

plausibly allege that the Board retaliated against her. More specifically, she has

failed to plausibly allege a causal link between any alleged protected activity and any

materially adverse action by the Board, a necessary element for a viable retaliation

claim. And as to the latter, Sizemore’s § 1983 claim likewise fails as a matter of law.

Respondeat superior does not apply to § 1983 claims, so Sizemore must plausibly

allege misconduct by the Board itself. This would typically be accomplished by

plausibly alleging that the Board had a policy or custom of tolerating inappropriate

workplace behavior. That is what Sizemore seeks to do here, but her Second Amended

Complaint falls well short of the necessary allegations.

6 Because these claims are dismissed based on Sizemore’s concession that dismissal is

appropriate given the arm-of-the-state finding, the Court need not address whether each of

Sizemore’s various official-capacity claims against the Individual School Defendants

otherwise falls short, and the Court thus does not do so. That being said, the Court notes that

those claims faced at least an uphill battle against the Individual School Defendants. For

example, Title VII provides a cause of action against a party’s “employer,” which here is the

school district (i.e., the Board), and not, for example, the Principal or individual Board

members. In light of Sizemore’s concession, however, further exploration of such issues is

unnecessary.

1. The Title VII Claim Fails As Sizemore Fails To Allege The Board

Took Any Retaliatory Action Against Her.

Title VII’s anti-retaliation provision “protects employees from conduct that

would have ‘dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir. 2008)

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Absent

direct evidence of retaliation (Sizemore has suggested no such evidence here), the

prima facie elements of a retaliation claim are that: (1) Sizemore engaged in protected

activity under Title VII; (2) the exercise of her protected rights was known to the

Board; (3) the Board thereafter took an action that was materially adverse to her; and

(4) there was a causal connection between the protected activity and the adverse

action.7 See Barrow v. City of Cleveland, 773 F. App’x 254, 261 (6th Cir. 2019); see

also Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 568–70 (6th Cir. 2019)

(discussing the Title VII retaliation framework post-Burlington Northern).

Importantly, the last prong requires but-for causation, “meaning the plaintiff must

furnish evidence that ‘the unlawful retaliation would not have occurred in the

absence of the alleged wrongful action or actions of the employer.’” Barrow, 773 F.

App’x at 261 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).

7 This Court is aware, as indicated above, that satisfying the prima facie elements in a

discrimination case is not a requirement at the pleading stage. As the Second Amended

Complaint is devoid of any direct evidence, however, the prima facie elements are a useful

guide to determining whether Sizemore has pled a plausible claim. This is not to foreclose

the possibility that direct evidence of retaliation may exist or may be elicited during

discovery.

As noted above, a plaintiff is not required to establish a prima facie case at the

pleading stage. At that same time, of particular import here, while the Sixth Circuit

has noted that the standard for pleading causation in a retaliatory discharge case is

“minimal,” the plaintiff must “put forth some credible evidence that enables the court

to deduce that there is a causal connection between the retaliatory action and the

protected activity.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (citation

omitted). Here, while Sizemore has shown she engaged in protected activity, she has

pled no facts that create a plausible inference of any causal link between that activity

and her alleged adverse employment action.

a. Sizemore Engaged In Protected Activity.

There is little question that reporting alleged sexual misconduct in the

workplace is a protected activity under Title VII. See, e.g., Curtis v. Hanger

Prosthetics & Orthotics, Inc., 101 F. App’x 61, 65 (6th Cir. 2004) (assuming, without

deciding at the pleading stage, that “it is undisputed that [the employees] engaged in

protected activity by reporting … sexual harassment.”); see also Blizzard v. Marion

Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012) (taking “an overt stand against

suspected illegal discriminatory action,” e.g., reporting sexual misconduct, is a

protected activity). In the school setting, sexual misconduct may also give rise to a

Title IX violation, and that statute likewise makes reporting a protected activity. See

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174, 180 (2005) (noting “sexual

harassment is intentional discrimination encompassed by Title IX” and that

“[r]eporting incidents of discrimination is integral to Title IX enforcement and would

be discouraged if retaliation against those who report went unpunished.”); Bose v.

Bea, 947 F.3d 983, 988–89 (6th Cir. 2020) (noting that “[i]n unpublished authority,

however, we have analogized to Title VII retaliation claims” in the Title IX context).

Here, Sizemore’s Second Amended Complaint sets forth three instances of

alleged protected activity, each of which could potentially support a retaliation claim.

Sizemore first recounts that throughout her employment, but specifically in

September 2017, she reported Benjamin’s alleged workplace misconduct to her

supervisor. (SAC at ¶ 26, #205). That is protected reporting activity. Second, she

alleges that, in November of 2017, she reported to Principal Slamer, Assistant

Principal Reuther, and Teresa Lewis (her supervisor), that Benjamin had engaged in

“improper sexual conduct” by taking a photograph of a student and telling another

that he was “saving [the photo] for later.” (Id. at ¶¶ 30, 32, #205, 206). That is also

protected conduct. Finally, she alleges that on August 10, 2018, she reported to

Human Resources that, in July of 2018, Benjamin physically assaulted her in a closet

on school grounds.8 (Id. at ¶ 42, #207).

b. The Board Plausibly Knew About The Protected Activity.

Sizemore has likewise plausibly pled facts showing that the Board had

knowledge of her protected activities. See Barrow, 773 F. App’x at 262. In most cases,

there will be direct evidence of an employer’s knowledge about a plaintiff who engages

8 While each of these is protected activity, the last one is a non-starter as a basis for a

retaliation claim. Sizemore alleges that she reported Benjamin’s alleged misconduct on

August 10, 2018, left work that day, and never returned. On that timeline, there is no

plausible way the Board could have retaliated against her, as she was no longer an employee.

The other two instances of protected activity, however, could plausibly give rise to a

retaliation claim.

in protected activity. See Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002). But

“[d]irect evidence of the [employer’s] knowledge or awareness is not required” to

establish, let alone plausibly allege, this element. Barrow, 773 F. App’x at 262.

(quoting Mulhall, 287 F.3d at 552). Instead, there must just be “sufficient evidence

to support the inference that the employer knew of the protected activity.” Id.

(quotation omitted); see Mulhall, 287 F.3d at 552 (inferring the employer’s knowledge

because the employer “took an action with respect to the plaintiff, other than the

challenged action, from which it could be inferred that the [employer] was aware of

the plaintiff’s grievance”).

Case law suggests that when an employee engages in protected activity by

reporting discrimination or harassment to a supervisor, that is sufficient to impute

knowledge about that activity to the employer. See, e.g., Abbott v. Crown Motor Co.,

348 F.3d 537, 543 (6th Cir. 2003) (finding, at summary judgment, that when

“Plaintiff … notified [his manager] that he had witnessed [another employee’s] racial

discrimination and would testify to it in a court of law,” the second prima facie

element was satisfied); Alexander v. Univ. of Ky., No. 5:10-cv-48-REW, 2012 WL

1068764, at *16 (E.D. Ky. Mar. 28, 2012) (finding, at summary judgment, that the

employer knew about protected activity when an employee reported discrimination

to the University of Kentucky’s Assistant Vice President of Institutional Equity,

because she “was a UK employee acting in an official capacity when she received

those complaints, there can thus be no dispute that UK knew of” the employee’s

protected activity); Laporte v. B.L. Harbert Int’l., LLC, No. 5:09-cv-219, 2010 WL

2541154, at *2 (W.D. Ky. June 18, 2010) (“Opposing conduct protected by Title VII

includes complaining to anyone about alleged discrimination against oneself or

others. Implicit in this allegation is that [the] employer was aware of Plaintiff's

exercise of a protected right.”) (quotation and citation omitted).

Here, the Court finds that Sizemore has plausibly alleged that the Board was

aware of the protected activity set forth in Sizemore’s Second Amended Complaint.

Her reporting activities to Teresa Lewis are sufficient, if perhaps barely, to impute

knowledge of that reporting activity to the Board in September 2017. Similarly, her

reporting in November 2017, is also sufficient, as Sizemore informed both her

supervisor and two school administrators about the alleged incident with Students A

and B. In short, Sizemore has plausibly alleged that she engaged in protected

behavior—i.e., reporting workplace misconduct—and that the Board was aware of

that reporting activity as it occurred.

c. The Board Arguably Took Materially Adverse Action

Against Sizemore.

The third element of a retaliation claim is that the Board took a materially

adverse action against Sizemore. See Laster, 746 F.3d at 731. An action is materially

adverse if “a reasonable employee would have found the challenged action materially

adverse, which in this context means it might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Jones v. Johanns, 264 F.

App’x 463, 468–69 (6th Cir. 2007) (quoting Burlington N., 548 U.S. at 67–68). In this

inquiry, “‘[c]ontext matters. The real societal impact of workplace behavior often

depends on a constellation of surrounding circumstances, expectations, and

relationships which are not fully captured by a simple recitation of the words used or

the physical acts performed.’” Laster, 746 F.3d at 731 (quoting Burlington N., 548

U.S. at 69). “‘An act that would be immaterial in some situations is material in

others.’” Id. (quoting Burlington N., 548 U.S. at 82).

Sizemore’s allegation on this front appears to be that, despite reporting

Benjamin’s conduct to her supervisor, she was continually scheduled to work with

him, including on the day he allegedly sexually assaulted her. It is perhaps an

interesting question whether continuing to schedule a worker to work with a

particular co-worker would suffice, on a fully developed factual record, to meet this

element. For now, though, assuming her allegations about Benjamin’s behavior are

true (which the Court must accept as true), and that her supervisor forced her to

continue working with him with full knowledge of that behavior (which the Court

must also accept as true), resulting in her being sexually assaulted in the supply

closet in July 2018, this is sufficient to create a plausible inference that she suffered

a materially adverse action.9

9 Sizemore’s use of the phrase “constructive discharge” in Count II of the Second Amended

Complaint is also relevant here. While she seems to assert that “constructive discharge” is

some kind of free-standing employment claim under Title VII or state law, that is not the

case. Rather, “constructive discharge” is a label for a particular kind of adverse employment

action. See generally Pa. State Police v. Suders, 542 U.S. 129, 146 (2004) (discussing

constructive discharge in a Title VII “sexual harassment or hostile work environment”

scenario). The label typically arises where the employee has quit his or her job before bringing

suit. In such cases, the employer may seek to defend itself by claiming that the employee did

not suffer a materially adverse action because he or she voluntarily quit. See id. (noting the

affirmative defense afforded to employers). Constructive discharge is a way of overcoming

that argument. It allows the employee to show that, although the employee quit, in fact, the

job conditions were so intolerable that the act of quitting should not be viewed as “voluntary,”

but actually should be treated as an involuntary discharge, and thus as a materially adverse

action. See id. at 147 (“A hostile-work environment constructive discharge claim

entails … working conditions so intolerable that a reasonable person would have felt

d. Sizemore Has Failed To Allege Facts Showing Any Causal

Connection Between Her Protected Activity And The

Materially Adverse Action.

The problem for Sizemore arises in connection with the fourth prong of a

retaliation claim, which analyzes whether the adverse action was deliberately

undertaken by an employer in response to, i.e., was caused by, the employee engaging

in protected activity. Not surprisingly, such a causal link is central to the notion of

“retaliation,” which the Cambridge English Dictionary defines as “do[ing] something

harmful to someone because they have done or said something harmful to you.”

Retaliation, Cambridge English Dictionary Online, Cambridge Univ. Press (2020),

https://dictionary.cambridge.org/us/dictionary/english/retaliation (last visited Apr.

13, 2020). As noted above, at the pleading stage, Sizemore need only set forth minimal

facts plausibly alleging that this is the case. See Dixon, 481 F.3d at 333. But she has

failed to do so. Her Second Amended Complaint contains no factual material plausibly

suggesting that the materially adverse actions that she alleges she suffered were the

result of the Board retaliating against her for engaging in the protected activity that

she describes. Absent such allegations, she cannot move forward with her retaliation

claim.

To plausibly allege a causal connection between protected activity and an

adverse action, a plaintiff must put forth some fact creating an inference that the

adverse action would not have occurred without the employee first engaging in

compelled to resign”). Because the Court has found that Sizemore plausibly alleged that she

suffered a materially adverse action, the Court need not address at this time whether the

label “constructive discharge” also accurately captures the nature of the materially adverse

action here.

protected activity. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).

This causal link can be shown two ways, either (1) through direct evidence or

(2) through “knowledge coupled with a closeness in time that creates an inference of

causation.” Id. at 566. There is no single factor that is dispositive in establishing a

causal connection, but “evidence that the defendant treated the plaintiff differently

from similarly situated employees or that the adverse action was taken shortly after

the plaintiff’s exercise of protected rights is relevant to causation.” Id.; see also Abbott,

348 F.3d at 542–43 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252

(1981)). “To establish the causal connection that the fourth prong requires, the

plaintiff must produce sufficient evidence from which one could draw the inference

that the employer would not have taken the adverse employment action against the

plaintiff had the plaintiff not engaged in activity that Title VII protects.” Abbott, 348

F.3d at 543 (citing Nguyen, 229 F.3d at 563; EEOC v. Avery Dennison Corp., 104 F.3d

858, 861 (6th Cir. 1997)). As Sizemore has alleged no direct evidence, she attempts to

proceed by establishing temporal proximity (either with or without attendant facts)

and by demonstrating disparate treatment. She fails to minimally, let alone

plausibly, allege either.

i. Sizemore’s Reliance On Temporal Proximity Alone Is

Insufficient To Establish A Causal Connection.

In some cases, “temporal proximity between the protected activity and the

adverse action, in and of itself, is sufficient to establish a causal connection.” Nguyen,

229 F.3d at 566 (collecting cases). “In analyzing the facts in temporal proximity cases,

we have always looked at the totality of the circumstances to determine whether an

inference of retaliatory motive could be drawn.” Vereecke v. Huron Valley Sch. Dist.,

609 F.3d 392, 400–01 (6th Cir. 2010). This is to say, “on a particular set of facts,

extremely close temporal proximity could permit an inference of retaliatory motive,”

but usually “evidence in addition to temporal proximity is required to permit the

inference.” Id. at 401. Conversely, “the more time that elapses between the protected

activity and the adverse employment action, the more the plaintiff must supplement

[her] claim with ‘other evidence of retaliatory conduct to establish causality.’” Id. at

400 (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524–25 (6th Cir. 2008)).

The Supreme Court has implied that temporal proximity alone is insufficient

to establish a causal connection in the retaliation context when there is a lapse of

more than three months between the protected activity and the allegedly adverse

action. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001). “The cases

that accept mere temporal proximity … as sufficient evidence of causality to establish

a prima facie case uniformly hold that the temporal proximity must be very close.”

Id. (quotation omitted) (finding cases with three- and four-month gaps to be

insufficient). And even then, when a “plaintiff’s retaliation case [is] otherwise weak,”

mere “temporal proximity alone [is] not particularly compelling.” Nguyen, 229 F.3d

at 566. See also, e.g., Kean v. IT-Works, Inc., 466 F. App’x 468, 471 (6th Cir. 2012)

(holding that, absent other evidence of retaliation, a two-and-a-half-month gap is not

sufficient to support an inference of causation).

While it may be true that “this Circuit has not adopted a uniform approach on

whether causal connection may be established solely on the basis of temporal

proximity,” Krumheuer v. GAB Robins N. Am., Inc., 484 F. App’x 1, 5 (6th Cir. 2012),

under any reasonable standard, Sizemore’s allegations here do not create a plausible

inference of causality based on temporal proximity alone. Part of the problem is that

the Second Amended Complaint is a little ambiguous about when the allegedly

protected activity (i.e., reporting) occurred, suggesting that she was reporting

Benjamin’s alleged misconduct beginning in September of 2017, and continuing

“throughout her employment.” (See SAC at ¶ 26, #205). The only other date she

specifies is her November 2017 reporting regarding the photograph. (See id. at ¶¶ 26–

37, #205–06). But against that backdrop, she alleges only one particular event as

reflecting the Board’s alleged retaliatory conduct: Teresa Lewis assigning Sizemore

and Benjamin to work together in July 2018. (Id. at ¶ 38, #206–07). In fact, far from

alleging retaliation in advance of July 2018, she specifically alleges “inaction.” (See,

e.g., id. at ¶¶ 26–29, #205 (alleging her supervisor followed a “policy of inaction” and

that the “Defendants took no action”)). This single instance of alleged retaliatory

conduct, which occurred more than six months after she began the protected activity,

lacks sufficient temporal proximity to establish a causal connection, even for pleading

purposes. Perhaps if she had identified some way in which her protected activity

changed in the immediate temporal vicinity of the allegedly retaliatory act, that may

be different, but that is not what she alleged in her Second Amended Complaint.

Her final example, her reporting activity in August 2018, when she informed

Human Resources about Benjamin’s alleged assault, fails as a matter of law on the

causation front for a different reason. In particular, immediately after reporting him,

she left work never to return. Thus, the Board did not have an opportunity to retaliate

against her, even had it intended to do so (and there is no reason to believe that it

did).

ii. Temporal Proximity And Attendant Facts Are Also

Insufficient To Establish A Causal Connection.

Sizemore could perhaps overcome the lack of temporal proximity as to the first

two reporting activities if she had identified additional facts supporting a causal

connection. But the Second Amended Complaint provides precious little detail

regarding any alleged causal link beyond the alleged temporal proximity. She asserts

no fact that implies that the alleged adverse action (i.e., scheduling her to work with

Benjamin) was done in retaliation for her engaging in protected activity. That is,

there are no factual allegations suggesting that either the Board or her supervisor,

after she undertook any of her alleged reporting activity, intended to punish her for

having done so. There is also nothing that suggests Sizemore’s supervisor understood

her reporting Benjamin’s behavior as even involving a serious allegation, or at least

as serious as Sizemore intended it to be. (See generally SAC at ¶¶ 17–51, #204–08).

Rather, Sizemore alleges that her supervisor responded by saying that Benjamin was

“creepy[,]”was “goofin’ around,” and that her supervisor generally refused to take any

action—such inaction seems the antithesis of retaliation. (Id. at ¶ 27, #205). Nor does

Sizemore point to any attendant fact, beyond the work assignment itself, that would

make it appear likely that her supervisor or the Board had animus toward her—for

example, alleging that, as a result of the reporting, they ordered her to undertake

substantial additional work, or threatened to reduce her pay, or gave her bad

performance evaluations, or anything of the kind. (See generally id. at ¶¶ 17–51,

#204–08). In short, she identifies nothing that changed as a result of her engaging in

the allegedly protected activity, and thus she has not articulated a plausible claim of

retaliation.

iii. Sizemore’s Allegations Of Disparate Treatment Are

Likewise Insufficient To Establish A Causal

Connection.

Perhaps recognizing this weakness, Sizemore separately tries to show a

plausible case of causation through comparisons to her co-workers—alleging that she

was “treated worse than other employees who did not report sexual harassment.” (See

SAC at ¶ 49–50, #208). But on this front, she offers only that bald assertion, rather

than alleging any actual facts to back it up. Sizemore does not say, for example, that

other janitors got to select the co-workers with whom they would work, or anything

else along those lines. Nor does she say that other’s reports of sexual harassment

were investigated differently. Her two-sentence assertion of disparate treatment,

standing alone with no factual support, is insufficient to plausibly establish a causal

connection, whether considered alone or in conjunction with her other allegations.

e. Conclusion.

The Second Amended Complaint plausibly alleges that Sizemore engaged in

protected reporting activity, that the Board (and at least her supervisor, which is

enough for present purposes) knew of one or more of the reporting incidents, and that

at some point after engaging in the reporting activity, she suffered a materially

adverse action. What she fails to plausibly allege, though, even reading all of the facts

in the light most favorable to her, is that the Board took any action toward her that

was meant to “punish” her for engaging in protected activity. Accordingly, the Court

DISMISSES WITHOUT PREJUDICE Sizemore’s Title VII retaliation claim

against the Board.

2. Sizemore’s Claims Against The Board Pursuant To Revised Code

Chapter 41 Fail For The Same Reason.

Analysis of Sizemore’s state law retaliation claim against the Board mirrors

the analysis of her federal law Title VII claim. See Conley v. City of Findlay, 266 F.

App’x 400, 404 (6th Cir. 2008) (“The Ohio Supreme Court has held that the analysis

used to evaluate claims under [Ohio Rev. Code] § 4112.02 is identical to the analysis

used for Title VII.”); Scott v. FirstMerit Corp., 167 F. App’x 480, 487 (6th Cir. 2006)

(failing to “identify any reason why the state-law [discrimination] claims should be

treated differently” than the federal Title VII claims, and resolving them “in the same

way under the same framework”). For the same reasons that Sizemore’s Title VII

retaliation claim fails, so too does her claim under state law. Accordingly, the Court

DISMISSES her Ohio Rev. Code § 4112 retaliation claim against the Board

WITHOUT PREJUDICE.

3. Sizemore’s § 1983 Claim Against The Board Fails As A Matter Of

Law.

The Board likewise moved to dismiss Sizemore’s 42 U.S.C. § 1983 claim on the

merits. In order to survive dismissal of this claim, Sizemore must plausibly allege

that she was (1) deprived of a federal right (2) by someone acting under the color of

law. See Baker v. McCollan, 443 U.S. 137, 147 (1979). She fails to do so.

As a threshold matter, Sizemore cannot rely on her rights under Title VII as

grounds for satisfying this first prong. “[A]n employee may sue her public employer

under both Title VII and § 1983,” but the § 1983 claim survives only when it “rests on

a claim of infringement of rights guaranteed by the Constitution.” Day v. Wayne Cty.

Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir. 1984) (citing Grano v. City of Columbus,

637 F.2d 1073, 1082 (6th Cir. 1980)). In other words, if the federal right of which a

party was allegedly deprived is a right guaranteed by Title VII, then Title VII, not

§ 1983, provides the exclusive vehicle for vindicating that right.

Recognizing this, Sizemore attempts to base her § 1983 claim on an alleged

substantive Due Process violation, not the alleged Title VII violation. She asserts that

“as a direct and proximate result of the actions and inactions of Defendant Edgewood

Board of Education, Plaintiff has been deprived of her constitutional right to personal

security and bodily integrity which is protected under [sic] substantive component of

[sic] due process clause of the US [sic] Constitution.” (SAC at ¶ 69, #211).

To Sizemore’s credit, there is little doubt that the substantive component of

the Fourteenth Amendment’s Due Process Clause “certainly encompasses the right

not to be sexually assaulted under the color of state law.” Doe v. Claiborne Cty., 103

F.3d 495, 505, 507 (6th Cir. 1996); Doe v. Big Walnut Local Sch. Dist. Bd. of Educ.,

837 F. Supp. 2d 742, 751 (S.D. Ohio 2011) (recognizing Doe but declining to extend

that constitutional right to encompass “verbal taunting or bullying” (quotation and

citation omitted)). But importantly, Sizemore does not allege the Board itself engaged

in such assault. Rather, she tries to hold the Board liable under § 1983 for the alleged

conduct of her co-worker, Benjamin.

In doing so, she runs into a separate problem—§ 1983 does not provide for

respondeat superior liability. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658,

691 (1978). Recognizing this too, Sizemore alleges that the constitutional violation

resulted from an inadequate policy, training, or response by the Board. (See SAC at

¶ 61, #210). But under Monell, the Board “cannot be found liable” unless a plaintiff

can establish the Board maintained “an officially executed policy,” or that it tolerated

a custom of behavior that “leads to, causes, or results in the deprivation of a

constitutionally protected right.” Claiborne Cty., 103 F.3d at 507 (citing Monell, 436

U.S. at 690–91). In other words, Sizemore must allege either (1) an officially executed

policy permitting sexual harassment or (2) a custom, pursuant to which the Board

has essentially blessed that type of behavior. See id.

Sizemore does not allege that the Board has an official policy of tolerating

sexual misconduct, and it would be surprising if that were the case. Thus, she must

allege sufficient factual matter to plausibly show that the Board had a “custom” in

that regard.

But “custom” has a particular meaning in the § 1983 context. It refers to

something that is “so permanent and well settled as to constitute a custom or usage

with the force of law.” Monell, 436 U.S. at 691. This “notion of ‘law’ must include

deeply embedded traditional ways of carrying out state policy” and must “reflect a

course of action deliberately chosen from among various alternatives.” Claiborne Cty.,

103 F.3d at 507–08 (citations omitted). There must also be “a direct causal link

between the custom and the constitutional deprivation; that is ‘she must show that

the particular injury was incurred because of the execution of that policy.’” Id. at 509

(emphasis in original) (quoting Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th

Cir. 1993)). “This requirement is necessary to avoid de facto respondeat superior

liability explicitly prohibited by Monell.” Id.

Sizemore has alleged nothing of the sort. She has alleged no facts suggesting

that the Board has a “deeply embedded custom” of tolerating Benjamin’s type of

alleged misbehavior. Sizemore’s argument—that the Board had a policy of ignoring

sexual misconduct—is further undercut by the fact that when she reported

Benjamin’s alleged conduct related to Students A and B, the Board (or at least the

Principal, Vice Principal, and Teresa Lewis) did do something—they held a meeting

with those involved. (SAC at ¶¶ 30–33, #205–06). Admittedly, Sizemore disagreed

with the outcome of that situation. (Id. at ¶¶ 35–37, #206). But legal conclusions and

disagreement with how school officials investigated and resolved allegations of

misconduct are insufficient to substantiate her § 1983 custom and practice claim.

In fact, a review of her allegations on this front shows that it consists almost

exclusively of “‘labels and conclusions’ [and] ‘a formulaic recitation of the elements of

a cause of action[,]’” the very things that the Supreme Court has said are not enough.

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). She states:

¶ 65. Defendant’s policy of inaction created a clear and persistent

patter [sic] of activity or inactivity by the employees of Edgewood

Board of Education.

¶ 66. Defendant Edgewood Board of Education had actual or

constructive notice of the deprivation of plaintiff’s constitutional

rights.

¶ 67. Defendant Edgewood Board of Education, by and through their

actions and inactions, gave tacit approval of the unconstitutional

conduct such that their deliberate indifference in their failure to

act amounted to an official policy.

¶ 68. Defendant Edgewood Board of Education’s custom was the

moving force or direct causal link in the constitutional

deprivation to plaintiff.

¶ 69. As a direct and proximate result of the actions and inactions of

Defendant Edgewood Board of Education, Plaintiff has been

deprived of her constitutional right to personal security and

bodily integrity which is protected under [sic] substantive

component of [sic] due process clause of the US [sic] Constitution.

¶ 70. The deprivation of her federal right was committed by an induvial

[sic] or individuals acting under color of law.

(SAC at ¶¶ 65–70, #210–11). Each of these are legal conclusions, lacking any factual

support.

Without some actual facts to support the existence of the alleged “custom,”

Sizemore cannot move beyond the pleading stage. That being said, if she can identify

such factual support—assuming it exists—this claim may survive. Therefore, the

Court DISMISSES Sizemore’s § 1983 claim against the Board, but does so

WITHOUT PREJUDICE.

Finally, the Court notes that Sizemore has now amended her Complaint twice.

If she believes that she has a good-faith basis for setting forth allegations that meet

the pleading standards set forth in this Order as to either her Title VII/Chapter 41

retaliation claim or her § 1983 claim against the Board, the Court directs her to file

a motion for leave to file a third-amended complaint with the proposed pleading

attached. Making this request in passing in the penultimate line of her response

memorandum, without attaching the proposed complaint, does not suffice.

CONCLUSION

For the above reasons above, the Court GRANTS Defendants’ Partial Motion

to Dismiss (Doc. 24) and ORDERS as follows:

The Court DISMISSES WITH PREJUDICE:

a. Count Is Title VII claim against the Board Members and Principal

Slamer in their official capacities;

b. Count II’s Title VII claim against the Board Members and Principal

Slamer in their official capacities;

c. Count I’s Revised Code § 4112.02 claim against the Board Members and

Principal Slamer in their official capacities;

d. Count IIT’s Revised Code § 4112.02 claim against the Board Members and

Principal Slamer in their official capacities; and

e. Count IIT’s 42 U.S.C. § 1983 claim against the individual Board

Members and Principal Slamer in their official capacities.

The Court DISMISSES WITHOUT PREJUDICE:

f. Count II’s Title VII retaliation/constructive discharge claim against the

Board;

g. Count IT’s Revised Code § 4112.02 retaliation claim against the Board;

and

h. Count IIT’s 42 U.S.C. § 1983 claim against the Board.

SO ORDERED.

April 17, 2020

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

29