Thomas v. Columbus City Schools (Columbus Board of Education)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JESSICA THOMAS,

Plaintiff, :

Case No. 2:21-cv-1117

v.

Judge Sarah D. Morrison

Magistrate Judge Kimberly A.

Jolson

COLUMBUS CITY SCHOOLS, et

al., :

Defendants.

OPINION AND ORDER

Plaintiff Jessica Thomas, proceeding without assistance of counsel, first filed

this action on March 15, 2021. (ECF No. 1.) She filed an Amended Complaint two

days later. (Am. Compl., ECF No. 6.) The Amended Complaint asserts claims

against Defendant Columbus City Schools alone. (Id.) This matter is presently

before the Court for consideration of Columbus City Schools’ Motion to Dismiss.

(Mot., ECF No. 9.) Ms. Thomas filed a response (Resp., ECF No. 15) and Columbus

City Schools replied (Reply, ECF No. 17).1 Ms. Thomas has since filed two motions

for leave to amend her complaint. (ECF Nos. 22, 23.) For the reasons set forth

1 Ms. Thomas also filed an amended response in opposition to Columbus City

Schools’ motion. (ECF No. 18.) Ms. Thomas did not move for leave to amend her

response or provide any reason demonstrating good cause for doing so. (See S.D.

Ohio Civ. R. 7.2(a)(2) (“No additional memoranda beyond those enumerated [(one

response by non-movant and one reply by movant)] are permitted except upon leave

of court for good cause shown.”).) Further, Columbus City Schools argues that the

amended response asserted “no new substantive matters.” (ECF No. 19.) The Court

agrees. Accordingly, although the Court has reviewed Ms. Thomas’s amended

response, it treats the original response (ECF No. 15) as the operative brief.

below, Columbus City Schools’ Motion to Dismiss is GRANTED and Ms. Thomas’s

motions for leave to amend are DENIED AS MOOT.

I. BACKGROUND

The Amended Complaint provides scant detail. It is, at times, challenging to

discern the events giving rise to Ms. Thomas’s claims. The Court’s best effort is

below.

Ms. Thomas began working for Columbus City Schools as a strings instructor

in June 2015. (Am. Compl., PAGEID # 37.) On September 19, 2018, Ms. Thomas

met with Columbus City Schools’ Executive Director of HR, Mira Wright. (Id. at

PAGEID # 36.) At that meeting, Ms. Wright placed Ms. Thomas on an

“administrative paid medical leave/fitness for duty leave,” allegedly “because [Ms.

Thomas] disclosed that [she] was receiving professional clinically counseling” and

had mental health diagnoses, including depression. (Id. at PAGEID # 36–37.) Ms.

Wright also promised to “investigate all of [Ms. Thomas’s] complaints”—of an

unspecified nature—while she was on leave. (Id. at PAGEID # 37.) At a subsequent

meeting, Ms. Wright told Ms. Thomas that she was placed on leave “because ‘some

people felt disrespected,’ and that [the leave] was a ‘break’ for [Ms. Thomas] to ‘calm

down.’” (Id.)

On December 10, 2018, Ms. Wright advised Ms. Thomas that she “could be

cleared” to return to work “if [she] provided a note from [her] physician.” (Id. at

PAGEID # 36.) One week later, Ms. Thomas produced such a note—but her return-

to-work request was denied. (Id.) She was instead instructed to “provide a note from

[her] counselor.” (Id.) The Amended Complaint does not expressly indicate whether

Ms. Thomas provided a note from her treating counselor. But, on January 7, 2019,

Columbus City Schools more specifically instructed that Ms. Thomas present “a

note from a psychologist with a PhD.” (Id.) The Amended Complaint further alleges

that Columbus City Schools required Ms. Thomas’s return-to-work clearance /

Fitness-for-Duty examination to be completed by a specific psychologist with whom

the district had contracted. (Id. at PAGEID # 37.) Ms. Thomas alleges she never

received a copy of the clearance. (Id.) Nonetheless, she returned to work on March 4,

2019. (Id. at PAGEID # 36.)

The Amended Complaint contains the following additional allegation:

Throughout my final 2 years of working for the defendant, from HR and

under 2 administrators that I reported to and made complaints about,

whistleblew on, and asked for reassignment from (Dr. Betty Hill and

Sherri Williams nee Edwards), I experienced several incidences of

Hostile Work Environment, Retaliation, Harassment, Whistleblower

Harassment, Constructive [Discharge], and Unlawful Disciplinary

Action (which was placed in the public record of my personnel file – this

equates to libel). These actions exacerbated and elongated my conditions

of Depression and OCD, and ultimately led me to resign from my

position [on May 29, 2020] in order to preserve my mental health.

(Id. at PAGEID # 37.) The Amended Complaint does not elucidate the nature or of

Ms. Thomas’s complaints, to whom or when those complaints were made, or the

incidences of alleged harassment she suffered as a result. It is also not clear

whether these complaints are the same as those mentioned by Ms. Wright at the

September 2018 meeting.

Finally, the Amended Complaint makes clear that Ms. Thomas was never

made aware of any issues with her performance, and received the “highest possible

rating” in evaluations covering her third and fifth teaching years. (Id.)

The above allegations are offered in support of Ms. Thomas’s claims for

violations under the Americans with Disabilities Act (“ADA”), the Family Medical

Leave of Act (“FMLA”), and Ohio employment and whistleblower protection laws.

II. MOTION TO DISMISS

Columbus City Schools moves to dismiss Ms. Thomas’s Amended Complaint

under Rules 12(b)(1) and 12(b)(6).

A. Standards of Review

Rule 12(b)(1) provides for dismissal when the court lacks subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). Without subject matter jurisdiction, a federal

court lacks authority to hear a case. Thornton v. Sw. Detroit Hosp., 895 F.2d 1131,

1133 (6th Cir. 1990). “Motions to dismiss for lack of subject matter jurisdiction fall

into two general categories: facial attacks and factual attacks.” United States v.

Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under Rule 12(b)(1)

“questions merely the sufficiency of the pleading[,]” and the court therefore takes

the allegations in the complaint as true. Gentek Bldg. Prods., Inc. v. Sherwin-

Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). To survive a facial attack, the

complaint must contain a short and plain statement of the grounds for jurisdiction.

Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016) (quoting Fed. R. Civ.

P. 8(a)(1)). A factual attack is a challenge to the factual existence of subject matter

jurisdiction. No presumption of truth applies to the factual allegations. Glob. Tech.,

Inc. v. Yubei (XinXiang) Power Steering Sys. Co., Ltd., 807 F.3d 806, 810 (6th Cir.

2015). When subject matter jurisdiction is challenged, “the plaintiff has the burden

of proving jurisdiction in order to survive the motion.” Moir v. Greater Cleveland

Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

Rule 8(a) requires a plaintiff to plead each claim with sufficient specificity to

“give the defendant fair notice of what the claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal alteration and

quotations omitted). See also Fed. R. Civ. P. 8(a). A complaint which falls short of

the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:

To survive a 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. 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. The

plausibility standard is not akin to a probability requirement, but it asks

for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555).

These standards apply equally when the plaintiff is pro se. Although a pro se

litigant is entitled to a liberal construction of her pleadings and filings, she still

must do more than assert bare legal conclusions, and the “complaint must contain

either direct or inferential allegations respecting all the material elements to

sustain a recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712,

716 (6th Cir. 2005).

B. Ms. Thomas’s ADA claim cannot proceed for failure to exhaust

administrative remedies.

Columbus City Schools first argues that Ms. Thomas’s ADA claim must be

dismissed for failure to exhaust administrative remedies.2 The Court agrees.

“Under the ADA, a claimant who wishes to bring a lawsuit claiming a

violation of the ADA must file a charge of discrimination with the [Equal

Employment Opportunity Commission (‘EEOC’)] within 300 days of the alleged

discrimination.” Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir.

2000) (citing 42 U.S.C. §§ 12117(a), 2000e–5(e)(1); Jones v. Sumser Ret. Vill., 209

F.3d 851, 853 (6th Cir. 2000)). “Federal courts do not have subject matter

jurisdiction of ADA claims unless the claimant explicitly files the claim in an EEOC

charge or the claim can reasonably be expected to grow out of the EEOC charge.”

Perry v. Am. Red Cross Blood Servs., 651 F. App’x 317, 324 (6th Cir. 2000) (internal

quotation and alteration omitted). Accordingly, “[f]ailure to timely exhaust

administrative remedies is an appropriate basis for dismissal of . . . [an] ADA

action.” Williams v. Nw. Airlines, 53 F. App’x 350, 351 (6th Cir. 2002) (citing Irwin

v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).

2 Columbus City Schools further argues that Ms. Thomas’s ADA claims are

time-barred. (Mot., 9.) Because the failure to exhaust is dispositive, the Court does

not discuss the statute of limitations argument.

Ms. Thomas admits that she did not file an EEOC charge alleging that

Columbus City Schools discriminated against her on the basis of disability. (See Am.

Compl., 5; Resp., 1.) Columbus City Schools adds that there can be no doubt that

the 300-day window available for filing a charge has closed, given that Ms. Thomas

resigned her position as a Columbus City Schools employee more than 300 days

before filing this suit. (Mot., 8.) Although the clock counting 300 days may be tolled,

“[f]ederal courts apply equitable tolling sparingly.” Williams, 53 F. App’x at 352

(citing Irwin, 498 U.S. at 96). For equitable tolling to apply, a “plaintiff must

demonstrate facts showing [her] diligence in pursuing the claim.” Id. (citing Morgan

v. Washington Mfg. Co., 660 F.2d 701, 712 (6th Cir. 1981)). Ms. Thomas offers,

without elaboration, that she “was attempting to resolve the matter internally over

a period of 2 years.” (Resp., 1.) That is not a sufficient demonstration of diligence.

Accordingly, Ms. Thomas failed to timely exhaust her administrative remedies.

Columbus City Schools’ motion to dismiss Ms. Thomas’s ADA claim is

GRANTED.

C. Ms. Thomas’s FMLA claim, as pled, is barred by the statute of

limitations.

Columbus City Schools next argues that Ms. Thomas’s FMLA claim is time-

barred. An FMLA claim is subject to a two-year statute of limitations, except to the

extent that the violation was “willful,” in which case the statute of limitations is

three years. 29 U.S.C. § 2617. “A willful violation is shown when an employer knew

or showed reckless disregard regarding whether its conduct was prohibited.”

Williams, 53 F. App’x at 352 (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128,

132–35 (1988)). The statute of limitations begins to run on “the date of the last

event constituting the alleged violation for which the action is brought.” 29 U.S.C.

§ 2617(c). Columbus City Schools argues that Ms. Thomas has not alleged a willful

violation of the FMLA, and so her FMLA claim is barred by the two-year statute of

limitations.3 (Mot., 12.) Again, the Court agrees.

In her Amended Complaint, Ms. Thomas alleges that Columbus City Schools

violated the FMLA on December 17, 2018, by denying her request to return to work.

(Am. Compl., PAGEID # 36.) According to Ms. Thomas, she was told that she

“needed to provide a note from [her] counselor” supporting a return to work, when

she had provided only a release from her physician. (Id.) Ms. Thomas further

alleges that Columbus City Schools “intentionally repeated this FMLA violation” on

January 7, 2019” when she “was told that [she] instead need to provide a note from

a psychologist with a PhD,” and then from a specific psychologist. (Id. at PAGEID

# 36–37.) Ms. Thomas ultimately returned to work on March 4, 2019. (Id. at

PAGEID # 36.) Ms. Thomas initiated this action two years and eleven days later, on

March 15, 2021. (See ECF No. 1.) Accordingly, Ms. Thomas’s FMLA claim is time-

barred unless she has adequately pled that Columbus City Schools willfully violated

the FMLA.

3 Columbus City Schools makes additional arguments, including that Ms.

Thomas’s FMLA claim is not facially plausible, is not legally cognizable, and is

otherwise not adequately pled. (See Mot., 10–15.) Because the statute of limitations

is dispositive of Ms. Thomas’s FMLA claim, the Court does not address those

additional arguments.

Under Sixth Circuit precedent, “the central inquiry in determining whether a

violation of the FMLA is willful is ‘whether the employer intentionally or recklessly

violated the FMLA.’” Crugher v. Prelesnik, 761 F.3d 610, 617 (6th Cir. 2014)

(quoting Hoffman v. Prof’l Med Team, 394 F.3d 414, 417 (6th Cir. 2005)). “A plaintiff

‘must do more than make the conclusory assertion that a defendant acted willfully.’”

Id. (quoting Katoula v. Detroit Entm’t, LLC, 557 F. App’x 496, 498 (6th Cir. 2014)).

See also Roller v. Brennan, 2:17-cv-241, 2018 WL 4405834, at *4 (S.D. Ohio Sept.

17, 2018) (Preston Deavers, M.J.) (noting that Iqbal and Twombly require a plaintiff

to do more than make “conclusory assertions and bare recitations of . . . defendants’

state of mind”). In this regard, the Amended Complaint falls far short. Ms. Thomas

concludes that Columbus City Schools “intentionally” violated the FMLA, and that

its allegedly offensive actions were “willful.” (Am. Compl., PAGEID # 36.) But she

alleges no facts supporting that conclusion. Nothing in the Amended Complaint

gives rise to an inference that Columbus City Schools acted with knowledge that its

conduct was prohibited by the FMLA, or with reckless disregard to Ms. Thomas’s

rights under the FMLA. In short, Ms. Thomas has failed to plead willfulness.

Accordingly, her FMLA claim, as pled, is subject to and barred by the two-year

statute of limitations.

Ms. Thomas argues for the opposite conclusion, asserting that her claim was

brought within even the two-year statute of limitations. (Resp., PAGEID # 79.) In

Ms. Thomas’s view, her lost income “well into May of 2019 due to having to remain

on unpaid FMLA leave” and May 2020 resignation, which she states was required

“to preserve [her] mental health after enduring multiple traumas by the defendant

. . . including both the trauma and the injustice of non-resolution of the FMLA

violation . . . ,” evidence the timeliness of her complaint. (See id.) As noted above,

the statute of limitations begins to run on the date of the last event constituting the

alleged violation. 29 U.S.C. § 2617(c). There is a “subtle” but important difference

between an unlawful act and the continuing effects of past unlawful acts.

Trzebuckowski v. City of Cleveland, 319 F.3d 853, 858 (6th Cir. 2003). See also

Joishy v. Cleveland Clinic Found., 3 F. App’x 259, 261 (6th Cir. 2001) (noting, in the

Title VII context, that “[c]onsequences of past acts . . . are insufficient to establish

present acts of discrimination and will not extend or toll the limitations period”)

(citation omitted). Ms. Thomas’s FMLA claim may proceed only if the event itself

falls within the limitations period; her lost income and resignation are instead mere

consequences of prior events. Cf., Pittman v. Spectrum Health System, 612 F. App’x

810, 814 (6th Cir. 2015) (collecting cases applying same in various legal contexts).

Columbus City Schools’ motion to dismiss Ms. Thomas’s FMLA claim is

GRANTED.

D. The Court declines to exercise pendent jurisdiction over Ms.

Thomas’s remaining state law claims.

Finally, Columbus City Schools argues that this Court should decline to

exercise jurisdiction over the remaining state law claims, in light of the federal

claims’ dismissal. Once more, the Court agrees. “[A] federal court should typically

decline to exercise pendent jurisdiction over a plaintiff’s state-law claims after

dismissing the plaintiff’s federal claims.” Brown v. Cassens Transport Co., 546 F.3d

347, 363 (6th Cir. 2008) (citing 28 U.S.C. § 1367(c)(3); United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 726 (1966)). Nothing about this case takes it outside the

scope of that general rule. The Court declines to exercise pendent jurisdiction over

Ms. Thomas’s state law claims.

Columbus City Schools’ motion to dismiss Ms. Thomas’s state law claims is

GRANTED.

III. MOTIONS FOR LEAVE TO AMEND

Ms. Thomas’s two pending motions for leave to amend her Amended

Complaint seek only to add a prayer for significant compensatory damages

attributable to pain and suffering. (See ECF Nos. 22, 23.) Ms. Thomas’s motions for

leave to amend are DENIED AS MOOT.

IV. CONCLUSION

For the reasons set forth above, Columbus City Schools’ Motion to Dismiss

(ECF No. 9) is GRANTED. Accordingly, Ms. Thomas’s Amended Complaint (ECF

No. 6) is DISMISSED and her two pending motions for leave to amend (ECF Nos.

22, 23) are DENIED AS MOOT. The Clerk is DIRECTED to TERMINATE this

case from the docket records of the United States District Court for the Southern

District of Ohio.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE