Carnes v. Ohio Department of Taxation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY CARNES, :

: Case No. 2:21-cv-03975

Plaintiff, :

: Chief Judge Algenon L. Marbley

v. :

: Magistrate Judge Jolson

OHIO DEPARTMENT OF TAXATION :

:

:

Defendant.

OPINION & ORDER

This matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 20). For the

reasons more fully stated below, the Court GRANTS Defendant’s Motion.

I. BACKGROUND

Jeffrey Carnes worked for the Ohio Department of Taxation (“ODT”) in Information

Technology. (ECF No. 1 at 2). He alleges that issues with his employer began when Steven Gray,

a then-new administration head at ODT Human Resources, demoted Carnes from a Programmer

Specialist to an Information Technologist 2 in August of 2011 “for no just cause.” (Id.). In

response, Carnes filed a union grievance along with the Ohio Civil Service Employees Association

(“OCSEA”). (ECF No. 1-2 at 7). Carnes eventually secured a favorable settlement in early

January of 2012 “for working beyond the … IT2 classification” of his new role as Information

Technologist 2. (ECF No. 1 at 3); (See ECF No. 1-2 at 5–6). According to Carnes, ODT retaliated

by suspending him for three days initially, then for five. (ECF No. 1 at 3). Each reprimand, Carnes

notes, was ultimately withdrawn. (Id.). Then, according to Carnes, ODT undertook more severe

measures. (Id.).

That same year, ODT invoked a process called involuntary disability separation (“IDS”) to

terminate Carnes’ employment. (Id. at 9, 13–14). It was during this process that ODT Human

Resource employee Charles Kumpar allegedly falsified information that Carnes’ states led to his

separation. (See id. at 1, 7, 15). Specifically, Kumpar claimed that Carnes behaved in such a

concerning manner during a meeting that he arranged for a medical evaluation to determine if

Carnes was “fit for duty.” (See id. at 5, 7). Carnes alleges this claim was false because, among

other reasons, Kumpar stated that whether the resulting report from the evaluation was factually

true was irrelevant; Kumpar simply sought Carnes’ disqualification from the job. (See id.).

Additionally, it was during the early stages of the IDS process Carnes was called “old” and told

that he could not lift fifty pounds. (Id.).

ODT’s decision was based on a finding that Carnes was disabled within the meaning of

that regulation and could not perform the essential functions of that position. (See id. at 8–9, 13–

14). Following that decision, Carnes appealed his separation to the Ohio Personnel Board of

Review (“the Board”). (See id. at 8). The Board upheld the separation, and Carnes subsequently

appealed to the Franklin County Court of Common Pleas. (See id. at 9, 12). That Court “reversed

the Board’s Order and remanded … because the administrative law judge had not considered all

Carnes’ evidence[;]” and Ohio’s Tenth District Court of Appeals “affirmed the trial court’s

judgment.” (See id. at 12) (quoting Carnes v. Ohio Dep’t of Taxation, 10th Dist. No. 15AP-971,

2016-Ohio-3428).

On remand, the Board again upheld ODT’s decision to use IDS to terminate Carnes’

employment. (See id.) (citing Carnes v. Ohio Dep’t of Taxation, No. 17-cv-4443 (Ohio Com. Pl.

Sept. 13, 2018). He again sought judicial review, appealing the decision to the Franklin County

Court of Common Pleas. (See id.). After the trial court upheld the Board’s decision, Carnes’

sought review in the Tenth District Court of Appeals. (See id. at 13). Following that court’s

decision to uphold the trial court’s judgment, he filed a complaint with the Ohio Civil Rights

Commission (“OCRC”) on December 4, 2019. (Id. at 2, 14). According to Carnes, the OCRC

told him it was unable to pursue his complaint any further and that if he wished to continue, he

needed to work with the Equal Employment Opportunity Commission (“EEOC”). That agency

issued a right to sue letter on April 29, 2021. (Id.). A little under three months later, Carnes filed

this lawsuit proceeding pro se. (See id. at 1).

Plaintiff challenges the Involuntary Disability Separation by ODT, and claims that the

agency violated the Americans with Disabilities Act (“ADA”), the Age Discrimination

Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Ohio

Civil Rights Act either before or throughout that process. (Id. at 14, 17).

Defendant timely filed its Motion to Dismiss (ECF No. 20); Plaintiff timely filed his

Response in Opposition (ECF No. 24); and Defendant timely filed its Reply (ECF No. 29).

Plaintiff also filed a Surreply. (ECF No. 30). This matter is now ripe for review.

II. STANDARD OF REVIEW

When subject matter jurisdiction is challenged pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction. Moir v. Greater

Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton

Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986)). Federal Rule of Civil Procedure 12(b)(1)

motions to dismiss based upon subject matter jurisdiction generally come in two varieties: (1) a

facial attack; or (2) a factual attack. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320,

325 (6th Cir. 1990) (identifying the two types of 12(b)(1) motions to dismiss). Facial attacks on

subject matter jurisdiction “merely question[ ] the sufficiency of the pleading.” Id. A facial attack

on subject matter jurisdiction is reviewed under the same standard as a 12(b)(6) motion to dismiss.

Id. The Court will grant a Rule 12(b)(1) motion to dismiss if, taking all the plaintiff’s allegations

as true, the court is without subject matter jurisdiction to hear the claim. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984).

In a factual attack on subject matter jurisdiction, a court “must ... weigh the conflicting

evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist.”

Id. See also Nat’l Assoc. of Minority Contractors v. Martinez, 248 F. Supp. 2d 679, 681 (S.D. Ohio

2002). The Court has “wide discretion to allow affidavits, documents and even a limited

evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins., 922 F.2d at 325

(citations omitted). The Court may consider such evidence without turning the motion into one for

summary judgment. Id. The plaintiff bears the burden of proving jurisdiction by a preponderance

of the evidence when the defendant challenges subject matter jurisdiction under Rule 12(b)(1).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a

failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a

motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are sufficient to raise a

right to relief above the speculative level and to state a claim to relief that is plausible on its face.”

Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). “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.” Id. (quoting Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009)). And although the court “must accept all well-pleaded factual

allegations in the complaint as true,” the court “need not accept as true a legal conclusion couched

as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations omitted).

Finally, “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for

relief.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Raymond v. Avectus Healthcare

Sols., LLC, 859 F.3d 381, 383 (6th Cir. 2017); Taylor v. City of Saginaw, 922 F.3d 328, 331 (6th

Cir. 2019).

When a litigant is proceeding pro se, this Court holds his pleadings “to less stringent

standards than formal pleadings drafted by lawyers.” Garrett v. Belmont Cnty. Sheriff's Dep't, 374

F. App'x 612, 614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This

lenient treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App'x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III. LAW & ANALYSIS

Defendant filed its Motion to Dismiss asserting two theories for dismissal: (1) this Court

lacks subject matter jurisdiction over Plaintiff’s claims concerning his involuntary disability

separation, those brought under the ADEA, ADA, and any related state law claims; and at any rate,

(2) Plaintiff failed to state any claims upon which relief could be granted. (ECF No. 20 at 2–3).

Accordingly, based on one or more of the above theories, Defendant contends that Plaintiff’s

Complaint must be dismissed. (Id.).

Although Plaintiff filed a Response in Opposition, his filing reasserts many of the facts set

forth in his Complaint without reference to Defendant’s arguments concerning jurisdiction or

failure to state a claim. (See ECF No. 24). The few assertions that could arguably be identified as

responses are as follows: (1) he appears to argue that although his claim under the ADEA may be

subject to the bar of sovereign immunity, the primary claims of “Disability Discrimination

Discharge[,] Retaliation[, and] Defamation” are not; (2) absent explanation, he recites the concept

of federal question jurisdiction, implying that he disagrees with ODT’s contention concerning this

Court’s authority to hear his claims; and (3) ODT’s argument that he “failed to state a claim upon

which relief can be granted” is simply a tactic employed to “take the Court into other directions.”

(See id. at 6).

This Court will begin its analysis with Defendant’s Motion under 12(b)(1) and conclude

with its Motion under 12(b)(6).

A. 12(b)(1)

1. Appellate Review & State Law Claims against State in Federal Court

Defendant argues that Plaintiff seeks judicial review of a 2019 decision by Ohio’s 10th

District Court of Appeals. (ECF No. 20 at 3). Alternatively, Defendant maintains that to the extent

Plaintiff is attempting to sue the Ohio Department of Taxation in the first instance, his state law

claims are barred by sovereign immunity. (Id. at 10).

Plaintiff expresses a general disagreement with Defendant’s argument concerning this

Court’s authority to hear his claims. (See ECF No. 24 at 8). He does not refute Defendant’s

framing of his case as an appeal, complains throughout his Response that other courts failed to

“vet all the evidence,” and even refers to himself as the Plaintiff-Appellant and the Defendant as

the Defendant-Appellee. (See id. at 1, 10). He also asserts that he has exhausted all necessary

processes and has the right to sue based on his right to sue letter from the EEOC. (See id.). As

stated above, because Plaintiff is proceeding pro se his pleadings are subject “to less stringent

standards than formal pleadings drafted by lawyers.” Garrett, 374 F.App’x at 614.

Involuntary disability separation in Ohio is governed by Ohio Administrative Code section

123:1-30. See Ewell v. Montgomery Cty. Ct. of Common Pleas, 2014-Ohio-3047, ¶ 10 (citing

Cordial v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP–473, 2006–Ohio–2533, ¶ 10 and

Ohio Adm. Code 123:1–30–01(A)). An individual separated pursuant to this procedure may seek

review by Ohio’s State Personnel Board of Review (“Board”). Id. (citing Cordial at ¶ 20, R.C.

124.03(A), and Ohio Adm. Code 123:1–30–04(I)). Once that agency renders a final decision, a

party may seek review in Ohio state court. Ohio Rev. Code § 119.12(B). The statute authorizing

review does not provide for review in any other forum. See id. (“Any party adversely affected by

any order of an agency issued pursuant to any other adjudication may appeal to the court of

common pleas of Franklin county.”). Moreover, though Ohio has waived its sovereign immunity

as to some actions under Ohio law, those must be brought in the Ohio Court of Claims. See Ohio

Rev. Code § 2743.03(A)(1) (“[T]he court of claims is a court of record and has exclusive, original

jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in

section 2743.02 of the Revised Code.”). Otherwise, Ohio law claims against the state are barred

by the state’s Eleventh Amendment sovereign immunity. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 121 (1984) (“We concluded … that a claim that state officials violated

state law in carrying out their official responsibilities is a claim against the State that is protected

by the Eleventh Amendment.”).

Plaintiff asserted his right to seek review of the Board’s decision in state court. After

receiving an adverse order from the Board, he sought review in the Franklin County Court of

Common Pleas. See Carnes v. Ohio Dep't of Tax'n, 2016-Ohio-3428, ¶ 1. When Plaintiff received

an adverse decision in that court, he then sought review in Ohio’s Tenth District Court of Appeals.

Id. He again sought review in that same court in 2019. Carnes v. Ohio Dep't of Tax'n, 2019-Ohio-

3244, ¶ 37.

To the extent he seeks additional review of that court’s decision, that statute—or any other

authority—does not authorize this court to grant this request. To the extent he is attempting to

assert a state law claim against the state in this Court in the first instance, that too is barred under

Pennhurst.1 465 U.S. at 121.

Accordingly, Plaintiff’s claims concerning his involuntary disability separation pursuant

to state law—whether as an appeal or in the first instance—are DISMISSED WITHOUT

PREJUDICE FOR A LACK OF JURISDICTION.

2. Federal Discrimination Claims

Defendant argues that Plaintiff’s claims under the ADA and ADEA are barred by the

State’s Eleventh Amendment sovereign immunity. (See ECF No. 20 at 3). Moreover, Defendant

contends that because the State has neither consented to suits nor has Congress abrogated the

State’s immunity under these statutes, Plaintiff is barred from bringing these claims. (See id. at

9). Accordingly, Defendant maintains these claims must be dismissed.

In his Response in Opposition, Plaintiff asserts that though his ADEA claims may be

subject to the bar of sovereign immunity, his claims of “Disability Discrimination Discharge[ and]

Retaliation” are not. (See ECF No. 24 at 6).

“The Eleventh Amendment is an absolute bar to the imposition of liability upon States and

State agencies.” Jimmie L. Washington v. State of Ohio et al., No. 5:21-CV-2003, 2022 WL

657484, at *2 (N.D. Ohio Mar. 4, 2022). To overcome this bar, the State “must consent[] to such

a suit or its Eleventh Amendment immunity [must have] been properly abrogated by Congress.”

Id. The Supreme Court held that when it comes to suits under the ADEA, “Congress did not

validly abrogate the States’ sovereign immunity to suits by private individuals.” Kimel v. Fla. Bd.

of Regents, 528 U.S. 62, 91 (2000). Moreover, Ohio has not consented to being sued under this

statute. Watson v. Ohio Dep't of Rehab. & Correction, 167 F. Supp. 3d 912, 922 (S.D. Ohio 2016),

1 Plaintiff’s possible assertion that ODT violated the Ohio Civil Rights Act or Ohio’s defamation laws fails for

similar reasoning under Pennhurst. 465 U.S. at 121.

aff'd, 690 F. App’x 885 (6th Cir. 2017) (citing Latham v. Office of Atty. Gen. of State of Ohio, 395

F.3d 261, 270 (6th Cir. 2005)).

The Supreme Court also held that “[b]ecause Title I [of the ADA] did not abrogate the

states’ Eleventh Amendment immunity, individuals may not sue states for money damages under

Title I.” Whitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir. 2011) (citing Bd. of Trs. of Univ. of

Ala. v. Garrett, 531 U.S. 356, 374 (2001)). Similar to the ADEA, this Court has found that Ohio

has not consented to suit under Title I of the ADA. See Lutz v. Ohio Dep't of Rehab. & Correction,

No. 2:10-CV-877, 2011 WL 587144, at *1 (S.D. Ohio Feb. 9, 2011).

Individuals may, however, “seek prospective injunctive relief for Title I violations pursuant

to Ex parte Young.” Whitfield, 639 F.3d at 2572 (citing Garrett, 531 U.S. at 374 n.9, and Ex parte

Young, 209 U.S. 123 (1908)). Such an action requires the litigant to sue “a state official acting in

her official capacity and may “seek [only] prospective relief to end a continuing violation of federal

law.” Id. (citing Carten v. Kent State Univ., 282 F.3d 391, 395 (6th Cir. 2002)). Notably,

“reinstatement … constitutes prospective injunctive relief.” Id. (citing Carten, 282 F.3d at 395.).

And though the parties do not explicitly address this point, courts within the Sixth Circuit

have held that whether a state is immune from an ADA Title V retaliation claim flows from the

state’s immunity status on the underlying claim. For example, if “the underling claim is predicated

on alleged violations of Title II of the ADA,” the state’s immunity status on the underlying claim

extends to the corresponding Title V claim. See e.g., McCollum v. Owensboro Cmty. & Tech.

Coll., No. 4:09CV-00121-M, 2010 WL 5393852, at *3 (W.D. Ky. Dec. 22, 2010); Saqr v. Univ.

of Cincinnati, No. 1:18-CV-542, 2019 WL 699347, at *10 (S.D. Ohio Feb. 20, 2019), report and

recommendation adopted, No. 1:18CV542, 2019 WL 1200802 (S.D. Ohio Mar. 14, 2019).

2 Note that in an unpublished decision the Sixth Circuit also found that an Ex parte Young action seeking prospective

relief is viable “under the ADEA.” Meekison v. Voinovich, 67 F. App'x 900, 901 (6th Cir. 2003).

Here, absent consent or valid Congressional abrogation, the Eleventh Amendment is a

complete bar to actions under the ADEA and Title I of the ADA for money damages. Because

this Court finds that ODT is immune from the Title I claim at issue in this case, sovereign immunity

also bars any Title V claims based on that same conduct. Id. (citing Demshki v. Monteith, 255 F.3d

986 (9th Cir. 2001) (finding that state was immune for ADA Title V retaliation claim predicated

on Title I violation because state was immune for suit under Title I)). Plaintiff’s potential claims

for injunctive relief under Title I (and any potentially related causes of action under Title V) and

ADEA fail because—even when read generously—he does not appear to be suing a state official

in his official capacity. See Taylor v. Tennessee Dep't of Safety, No. 20-CV-2855-MSN-TMP,

2021 WL 1876151, at *3 (W.D. Tenn. Apr. 1, 2021), report and recommendation adopted, No.

220CV02855MSNTMP, 2021 WL 1714244 (W.D. Tenn. Apr. 30, 2021) (dismissing pro se

Plaintiff’s ADA claim, in part, for not naming an official in her official capacity as a Defendant);

Henton v. Ohio Dep't of Rehab. & Correction, No. 1:19 CV 462, 2019 WL 4346266, at *2 (N.D.

Ohio Sept. 12, 2019) (same); Taylor v. Univ. of Michigan, No. 17-11473, 2018 WL 1322395, at

*5 (E.D. Mich. Feb. 23, 2018), report and recommendation adopted, No. 17-11473, 2018 WL

1316165 (E.D. Mich. Mar. 14, 2018) (same). Although Plaintiff identifies the Tax Commissioner

in the caption of his Complaint, it does not appear that he did this for anything other than

administrative reasons.3 Accordingly, these claims are DISMISSED WITHOUT

PREJUDICED FOR A LACK OF JURISDICTION.

3 For example, the parties’ names appear in all caps and the Plaintiff refers to this party as the “Defendant” as opposed

to “Defendants”. Moreover, he does not mention this official anywhere else in his Complaint and unlike the Defendant

in Whitfield, ODT did not interpret the Complaint to name such official. See Whitfield, 639 F.3d at 257.

B. 12(b)(6)

Although Defendant does not move to dismiss Plaintiff’s Title VII claim under 12(b)(6), a

district court may dismiss sua sponte for failure to state a claim provided the Plaintiff “was given

notice and an opportunity to amend.” Gooden v. City of Memphis Police Dep’t, 29 F. App’x 350,

352 (6th Cir. 2002); see also Lloyd v. Pokorny, No. 2:20-CV-2928, 2020 WL 4455547, at *12

(S.D. Ohio Aug. 3, 2020), appeal dismissed, No. 20-3928, 2020 WL 7062663 (6th Cir. Nov. 3,

2020), and reconsideration denied, No. 2:20-CV-2928, 2021 WL 5339505 (S.D. Ohio Oct. 6,

2021).

Under Title VII, it is unlawful for covered employers “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin[ ]....” 42 U.S.C. § 2000e-2(a)(1). Generally, a plaintiff must

file timely charges of employment discrimination with the EEOC and receive and act upon the

EEOC's notice of the right to sue before alleging a violation of Title VII in federal court. Nichols

v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003).

Here, though Plaintiff mentions in passing that he has received a right to sue letter from

the EEOC, including for a violation of Title VII, he does not make any other allegation to support

that claim. Indeed, he makes no allegation that he experienced an adverse employment action

because of his “race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(a)(1).

Though the Court does not dismiss this claim, pursuant to Gooden, 29 F. App’x at 352, this

decision serves as Plaintiff’s notice and he will be allowed to amend his Complaint.

IV. CONCLUSION

For the reasons more fully stated above, the Court GRANTS Defendant’s Motion to

Dismiss (ECF No. 20). Plaintiff is given fourteen (14) days to Amend his Complaint. Regarding

Motion for Moving the Case Forward and Surreply to Reply (ECF No. 30), to the extent that is a

Motion, it is DENIED AS MOOT.

IT IS SO ORDERED.

ALGENONA. MARBL

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 13, 2022

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