The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KIMBERLY A. WHEELER, : Case No. 3:20-cv-00141
:
Plaintiff, : District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
vs. :
:
MIAMI VALLEY CAREER
:
TECHNOLOGY CENTER,
:
Defendant. :
REPORT AND RECOMMENDATIONS1
Plaintiff Kimberly A. Wheeler is a teacher at Defendant Miami Valley Career
Technology Center. She asserts in this case that Defendant is her employer. She claims
that Defendant violated her rights under federal and Ohio law by discriminating against
her because of her sex and age, and retaliating against her because she filed charges with
the U.S. Equal Employment Opportunity Commission.
The case is before the Court upon Defendant’s Motion to Dismiss Plaintiff’s
Complaint (Doc. #10), Plaintiff’s Response and Alternative Request to File an Amended
Complaint (Doc. #11), and the record as a whole. Defendant did not exercise its option
to file a reply in support of its Motion to Dismiss.
Defendant argues that dismissal of all Plaintiff’s claims is warranted because the
Miami Valley Career Technology Center is not an entity capable of being sued and,
1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
under Ohio law, the only way to bring a suit against a school district is to sue its Board of
Education.2 This argument might well be correct. “Ohio Rev. Code § 3313.17 provides
that ‘the board of education of each school district shall be a body politic and corporate,
and, as such, capable of suing and being sued.’” McGath v. Hamilton Local School Dist.,
848 F.Supp.2d 831, 838 (S.D. Ohio 2012).
Plaintiff’s counsel seems convinced on this point. He acknowledges that
Defendant is a “career technology school … and has a Board of Education. As such,
Defendant is certainly entitled to be sued as a Board of Education.” (Doc. #11, PageID
#87). Plaintiff’s counsel asks for leave to file the proposed Amended Complaint attached
to Plaintiff’s Response as Exhibit A. He explains that Exhibit A, “lists the Defendant …
as Miami Valley Career Technology Center Board of Education.” Id.
But Exhibit A does not name Miami Valley Career Technology Board of
Education as Defendant; it instead names “Miami Valley CTC Governing Board.” Id. at
90. This may not have been intentional in light of Plaintiff’s prior acknowledgement that
“Defendant is certainly entitled to be sued as a Board of Education.” (Doc. #11, PageID
#87). Defendant has not addressed this anomaly.
The rule-bound and pragmatic approach at this point in the case is to grant
Plaintiff leave to amend her Complaint because such leave is “freely give[n] … when
justice so requires.” Fed. R. Civ. P. 15(a)(2). It seems, moreover, that no prejudice will
2 Defendant invokes Rule 12(b)(6) but this is a slight procedural misstep. Defendant filed an Answer to
Plaintiff’s Complaint and, consequently, a Rule 12(c) motion for judgment on the pleadings was the better
procedural tool to use. Kuczak v. City of Trotwood Police Dep’t, No. 3:13cv101, 2016 WL 4987170, at
*3 (S.D. Ohio 2016) (Rice, J.).
befall Defendant from allowing Plaintiff to amend her Complaint at this point in the case.
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. #10) be denied;
2. Plaintiff’s request for leave to file a First Amended Complaint be granted;
and
3. In the event these recommendations are adopted in full, Plaintiff be ordered
to file her First Amended Complaint within 10 days after a Decision and
Entry adopting these recommendations is docketed.
September 2, 2020 s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).