# Denoewer v. Union County Board of Developmental Disabilities

> District Court, S.D. Ohio · October 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10378817

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL A. DENOEWER, :
: Case No. 2:17-cv-660
Plaintiff, :
: Chief Judge Algenon L. Marbley
v. :
: Magistrate Judge Kimberly A. Jolson
UNION COUNTY INDUSTRIES :
:
Defendants. :

OPINION & ORDER
This matter is before the Court on Defendant’s Motion for Judgment as a Matter of Law.
(ECF No. 145). For the reasons that follow, Defendant’s Motion is DENIED.
I. BACKGROUND
On July 28, 2017, Plaintiff Michael Denoewer filed a complaint against Union County
Industries (“UCO”), the Union County Board of Developmental Disabilities (the “Board”), and
the Columbus Center for Human Services (“CCHS”), asserting disability discrimination. Initially
filing pro se, Plaintiff subsequently retained counsel and amended his pleadings several times. (See
ECF Nos. 27, 45, 48). The operative complaint, filed on February 1, 2019, maintained claims only
as to UCO for violation of the Americans with Disabilities Act (Count One) and the Ohio Civil
Rights Act (Count Two). (ECF No. 48, Ex. 1).
Trial began on October 4, 2021. Following Plaintiff’s case-in-chief, on October 6, 2021,
Defendant orally moved for a judgment as a matter of law on both claims, arguing that Plaintiff
had failed to exhaust administrative remedies. Defendant’s Motion was denied orally as to Count
One, pursuant to Barrow v. City of Cleveland, 773 Fed. App’x 254, 260 (6th Cir. 2019) (courts
should construe pro se EEOC charges “liberally” to include “‘claims that are reasonably related to
or grow out of the factual allegations in the EEOC charge’”) (quoting Younis v. Pinnacle Airlines,
Inc., 610 F.3d 359, 362 (6th Cir. 2010)). The Court withheld ruling on Defendant’s Motion as to
Count Two and instructed the parties to submit written briefing. (See ECF Nos. 144, 145). The
Court now considers Defendant’s Motion as to the state-law claim.
II. STANDARD OF REVIEW

A court may grant judgment as a matter of law when a party has been fully heard on an
issue and the court determines that a reasonable jury would not have legally sufficient evidence to
find for the party. Fed. R. Civ. P. 50(a)(1). If a court does not grant the motion and submits the
case to a jury, the court retains the ability later to decide the legal questions upon a renewed motion
for a judgment as a matter law. Fed. R. Civ. P. 50(b).
When addressing a motion for judgment as a matter of law under Rule 50, the inquiry is
the same as for summary judgment under Rule 56. White v. Burlington Northern & Santa Fe Ry.,
364 F.3d 789, 794 (6th Cir. 2004). A district court may issue judgment as a matter of law “when,
viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue

of material fact for the jury, and reasonable minds could come to but one conclusion in favor of
the moving party.” Tisdale v. Fed. Express Corp., 415 F.3d 516, 527 (6th Cir. 2005). When there
are inferences that can be drawn from the record, the court must draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility determinations or weigh the
evidence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); White, 364 F.3d at
794. A district court should grant a judgment as a matter of law “only if a complete absence of
proof exists on a material issue in the action, or if no disputed issue of fact exists on which
reasonable minds could differ.” Karam v. Sagemark Consulting, Inc., 383 F.3d 421, 427 (6th Cir.
2004).
III. LAW & ANALYSIS
In its Motion, Defendant contends it must prevail because Plaintiff failed to exhaust the
administrative remedies required by Ohio Revised Code Section 5126.06. (ECF No. 145 at 3).
That statute provides in pertinent part:
[A]ny person who has a complaint involving any of the programs, services, policies,
or administrative practices of a county board of developmental disabilities or any
of the entities under contract with the county board, may file a complaint with the
board. Prior to commencing a civil action regarding the complaint, a person shall
attempt to have the complaint resolved through the administrative resolution
process established in the rules adopted under section 5123.043 of the Revised
Code. After exhausting the administrative resolution process, the person may
commence a civil action if the complaint is not settled to the person's satisfaction.

O.R.C. § 5126.06(A) (emphasis added).1 Defendant contends that UCO is within the scope of the
statute because it contracts with the Board. Therefore, it argues, Plaintiff was required to exhaust
the statute’s complaint process before initiating this lawsuit. (ECF No. 145 at 4).
Plaintiff does not claim to have invoked the complaint process in Section 5126.06. Rather,
he argues that his employment discrimination claims against UCO are beyond its scope. (ECF No.
144 at 3–4). Specifically, Plaintiff invokes Ohio Administrative Code Section 5123-4-04, which
narrows the class of contracting entities that are subject to the statute’s exhaustion requirement.
According to the regulation:
“Contracting entity” means an entity under contract with a county board for the
provision of services to individuals with developmental disabilities.

O.A.C. § 5123-4-04(C)(3) (emphasis added). Plaintiff claims that UCO offered paid
employment, which is “a job, not a service.” (ECF No. 144 at 4).

1 An exception in Division B of the Section concerns complaints by “an employee of a county board . . . related to the
terms and conditions of employment of the employee.” O.R.C. § 5126.06(B). That provision is not implicated here,
as Plaintiff was an employee of UCO and not the Board.
The scope of Section 5126.06 appears to be a novel issue of state law. The Court need not
resolve it in the first instance because Defendant’s stance at trial undermines the statutory reading
it now seeks to advance. At trial, Defendant consistently has argued that it is an employer, not a
service provider, so it is estopped from claiming now to be under contract “for the provision of
services.”

The doctrine of judicial estoppel prevents a party from “prevailing in one phase of the case
on an argument and then relying on a contradictory argument to prevail in another phase.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citing Pegram v. Herdrich, 530 U.S. 211, 227
(2000)). It is a creature of equity; and, as such, courts should consider “whether the party seeking
to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped.” New Hampshire v. Maine, 532 U.S. 742, 751 (2001).
“Courts in this circuit apply federal law [when] applying the doctrine of judicial estoppel.” In re
Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prod. Liab. Litig., 2021 WL 2643110, at
*6 (S.D. Ohio June 28, 2021) (citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 n.4 (6th

Cir. 1982)).
Throughout its briefing as well as during trial, Defendant emphasized repeatedly its role as
an employer and minimized any responsibility as a service provider. Beginning with its opening
argument, Defendant stressed the different roles played by UCO, the Board and CCHS:
UCO is the employer. … They hire people. UCO is not accredited by the state of
Ohio or anybody else. And when Mr. Amerine takes the stand he’ll tell you, we
don’t provide services … We don’t have a license to do that. CCH[S] does, the
county does, but we don’t. We are an employer.

Trial Tr. [Defense Opening 5:14–20] (emphasis added).
Defense counsel later elicited testimony from David Amerine, UCO’s CEO, to expound
upon the relationship of the three organizations:
Q: And I want you to help the jury understand the three different entities that we’re
dealing with here and what their relationships are to one another please.
. . .
A: Part of the privatization process in Union County was to take what had been a
historic workshop in the classic sense of the term for individuals with
developmental disabilities and move UCO to solely a business employer.
. . .
Q: What changed in 2013 after the privatization?
A: After privatization, the county board ceased running the operation. They ceased
providing Medicaid services to employees at UCO. We then . . . identified that
CCHS was a Medicaid provider that seemed to be a good fit to partner at UCO. So
the Medicaid services necessary for the UCO employees were referred to CCHS to
be provided.

Trial Tr. [Amerine Direct 2:13–14, 3:03–06; 3:24–4:08].
In its summary judgment motion, Defendant described the relationship as follows:
Until 2013, UCO operated as a “sheltered workshop” for individuals receiving
services from the UCBDD [the Board] under the direct supervision of the UCBDD.
. . . In October 2013, UCO began operating as a private employer of people with
disabilities independent of the UCBDD. . . . CCHS provides the Medicaid support
services to UCO’s developmentally disabled employees that used to be provided
by the UCBDD prior to privatization.

(ECF No. 80 at 8) (emphasis added). Here too, UCO describes itself as the
employer, in contrast to the two service providers.
Furthermore, the Court observes that Defendant declined to assert an exhaustion defense
at the summary judgment stage. The Court need not, and does not, consider waiver arguments in
this opinion. The late stage of Defendant’s motion does, however, increase the risk of “unfair
detriment on the opposing party if not estopped.” New Hampshire v. Maine, 532 U.S. 742, 751
(2001).
In short, UCO consistently advanced the argument that it is an independent employer, in
contrast to the two service providers (first the Board, and later CCHS). This primary stance is
deeply at odds with its position in its Motion sub judice. Defendant asks the jury to consider it an
independent employer for the purpose of shifting responsibility onto the service providers. Now,
Defendant asks the Court to consider it a service provider for the purpose of administrative
exhaustion. To adopt Defendant’s argument on exhaustion would imply that the Defendant has
such a close relationship with the Board that Plaintiff must use that agency’s administrative scheme
before he can invoke his rights in the judicial system. Yet, Defendant spent the better part of the
trial distancing itself from the Board and CCHS. The doctrine of judicial estoppel is designed to
prevent precisely that type of “gamesmanship, achieving success on one position, then arguing the
opposite to suit an exigency of the moment.” Lorillard Tobacco Co. at 757.
When holding Defendant to its stance at trial, it becomes clear that UCO is not “under
contract with a county board for the provision of services to individuals with developmental
disabilities,” as the regulation requires. O.A.C. § 5123-4-04(C)(3). Therefore, Plaintiff was not
required to exhaust the administrative remedies in O.R.C. § 5126.06 before bringing his claim
against UCO.
IV. CONCLUSION
Accordingly, Defendant’s Judgment as a Matter of Law (ECF No. 145) is DENIED as to
the state-law claim as well.
IT IS SO ORDERED.
Lu L. ae
CHIEF UNITED STATES DISTRICT JUDGE
DATED: October 14, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378817. Public record. Not legal advice.