Ellis v. Clinton County Board of Commissioners

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALICIA ELLIS, : Case No. 1:23-cv-341

:

Plaintiff, :

:

vs. :

: Judge Jeffery P. Hopkins

CLINTON COUNTY BOARD OF :

COMMISSIONERS, et al.,

:

:

Defendants.

:

OPINION AND ORDER

This case is about alleged misconduct at an Ohio sheriff’s office. Plaintiff Alicia Ellis

has filed a lawsuit against her former employer, Defendant Clinton County, Ohio Sheriff’s

Office (the “CCSO”), and two of her former co-workers, Sergeant Christopher Kirk, and

Clinton County Sheriff Ralph D. Fizer, alleging various employment discrimination claims

under Title VII and Ohio law, as well as tort claims under Ohio law.

Pending before the Court is Defendant Christopher Kirk’s Motion for Judgment on

the Pleadings (the “Motion”). Doc. 13. For the reasons below, the Court GRANTS in part,

and DENIES in part, Kirk’s Motion.

I. BACKGROUND

Ellis is a licensed law enforcement officer that began her career as a sheriff’s deputy

for the CCSO on May 24, 2016. Doc. 8, PageID 55. As a deputy, one of her superiors was

Defendant Christopher Kirk. See id. at 54.

Relevant to this Motion, Ellis alleges discrimination and unlawful behavior directed

towards her by CCSO and its employees, including Kirk. For example, starting in 2016, she

alleges her field training officer began a pattern of making sexually harassing phone calls and

texts to her. Id. The officer even began to pursue Ellis for sexual favors and sent her a text of

his genitalia. Id. at PageID 56. She alleges that this negatively influenced her career as the

officer claimed he gave her poor performance reviews for not accepting the electronic

advances so that “people would not think we were f******.” Id. at PageID 55–56.

Ellis makes three main allegations in this vein regarding Kirk. First, Ellis alleges that

after she was harmed in the line of duty in 2017 and she went to have a medical exam, Kirk

“pushed his way into the examination room while [Ellis] was undressed and claimed he had

to watch ‘for worker’s compensation purposes.’” Id. She claims that after she demanded that

Kirk leave, he refused and stood in the room smiling while she was being examined and

discussed her medical history with staff. Id. at PageID 56–57. Ellis later learned that other

officers somehow received photos of her in the examination room at the hospital. Id. at

PageID 57.

Second, Ellis alleges that Kirk “attempted to intimidate an Ohio State Trooper who

was friends with [Ellis]” by demanding that he admit to Kirk that Ellis and the trooper were

having sexual relations. Id. Ellis claims that Kirk threatened to get the trooper fired if he did

not admit as much. Id. She further alleges that the trooper now refuses to speak with her after

this incident and that she filed a complaint of sexual harassment with her employer that was

never processed. Id.

Last, Ellis states that on September 7, 2022, Kirk assaulted her while in the CCSO

parking lot. Id at PageID 58. Apparently, Kirk was screaming at Ellis about an investigation

and then confronted her, demanding that Ellis fight him. Id. Ellis alleges that Kirk was

wearing his service weapon and body armor at the time while “uttering his challenge in a

fighting stance from 5 or less feet away from” her. Id.

Based on these events and other incidents, on June 5, 2023, Ellis filed a Complaint in

this Court against Defendants Clinton County Board of Commissioners, Sheriff Ralph D.

Fizer, and the CCSO. Doc. 1. Ellis later filed her Amended Complaint on August 1, 2023,

which dropped the Clinton County Board of Commissioners as a defendant and added Kirk.

Doc. 8. In the Amended Complaint, Ellis brought eight total claims, including claims for sex

discrimination and retaliation under both Title VII and Ohio law (Counts I–IV), public

servant intimidation (Count V), intentional infliction of emotional distress (“IIED”) (Count

VI), assault (Count VII), and negligent retention of a dangerous employee (Count VIII). Id.

After Defendants filed their Answer to the Amended Complaint (Docs. 10, 11), Kirk

moved the Court for judgment on the pleadings on all claims against him. Doc. 13. That

Motion is now pending before the Court.

II. STANDARD OF REVIEW

Kirk filed this Motion pursuant to Rule 12(c) and 12(b)(1). Rule 12(c) provides that,

“[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for

judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings

is assessed “using the same standard that applies to a review of a motion to dismiss under

Rule 12(b)(6).” Moderwell v. Cuyahoga Cnty., 997 F.3d 653, 659 (6th Cir. 2021) (citations

omitted). “For purposes of a motion for judgment on the pleadings, all well-pleaded material

allegations of the pleadings of the opposing party must be taken as true, and the motion may

be granted only if the moving party is nevertheless clearly entitled to judgment.” Jackson v.

Pro. Radiology Inc., 864 F.3d 463, 466 (6th Cir. 2017) (quoting S. Ohio Bank v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). “A Rule 12(c) motion ‘is

granted when no material issue of fact exists and the party making the motion is entitled to

judgment as a matter of law.’” Id. (quoting Paskvan v. City of Cleveland Civil Serv. Comm’n, 946

F.2d 1233, 1235 (6th Cir. 1991)).

The similarities between the rules are apparent, making clear why courts in this circuit

take comfort in applying them interchangeably. Under Fed. R. Civ. P. 12(b)(6) a plaintiff

must “state[] a claim for relief that is plausible, when measured against the elements” of a

claim. Darby v. Childvine, Inc., 964 F.3d 440, 444 (6th Cir. 2020) (citing Binno v. Am. Bar Ass’n,

826 F.3d 338, 345–46 (6th Cir. 2016)). “To survive a motion to dismiss, in other words, [the

plaintiff] must make sufficient factual allegations that, taken as true, raise the likelihood of a

legal claim that is more than possible, but indeed plausible.” Id. (citations omitted).

In making that assessment, the court similarly must “construe the complaint in the

light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable

inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430

(6th Cir. 2008) (internal quotation omitted). That is true, however, only as to factual

allegations. The court need not accept as true Plaintiff’s legal conclusions. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Moreover, the well-pled facts must be sufficient to “raise a right to relief above the speculative

level,” such that the asserted claim is “plausible on its face.” Iqbal, 556 U.S. at 678; Twombly,

550 U.S. at 546–47. Under the Twombly/Iqbal plausibility standard, courts play an important

gatekeeper role, ensuring that claims meet a plausibility threshold before defendants are

subjected to the potential rigors (and costs) of the discovery process. “Discovery, after all, is

not designed as a method by which a plaintiff discovers whether he has a claim, but rather a

process for discovering evidence to substantiate plausibly stated claims.” Green v. Mason, 504

F. Supp. 3d 813, 827 (S.D. Ohio 2020).

Rule 12(b)(1) provides for the dismissal of an action for lack of subject matter

jurisdiction. “The existence of subject matter jurisdiction may be raised at anytime, by any

party, or even sua sponte by the court itself.” Ogle v. Church of God, 153 F. App'’ 371, 374 (6th

Cir. 2005). A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the

sufficiency of the pleading itself (facial attack) or the factual existence of subject matter

jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial

attack goes to the question of whether the plaintiff has alleged a basis for subject matter

jurisdiction, and the court takes the allegations of the complaint as true for purposes of a Rule

12(b)(1) analysis. Id.

A factual attack challenges the factual existence of subject matter jurisdiction. In the

case of a factual attack, a court has broad discretion with respect to what evidence to consider

in deciding whether subject matter jurisdiction exists, including evidence outside of the

pleadings, and has the power to weigh the evidence and determine the effect of that evidence

on the court's authority to hear the case. Id. Plaintiff bears the burden of establishing that

subject matter jurisdiction exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516

(6th Cir.2004).

III. LAW AND ANALYSIS

Ellis alleges employment and tort claims against Kirk. Regarding the employment

claims, or Counts I–IV, Ellis argues that Kirk’s “continuous conduct” amounts to sex

discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and

Ohio Rev. Code § 4112.02(A).1 Doc. 15, PageID 103; Doc. 8, PageID 53, 59–60. Ellis also

argues that Kirk’s conduct as alleged in the Amended Complaint amounts to IIED and

tortious assault (Counts VI–VII). Doc. 15, PageID 107. The Court will address the

employment claims against Kirk, followed by the tort claims.

A. The Employment Claims Against Kirk.

Kirk moves for judgment on the pleadings regarding the employment claims because

he was not Ellis’s employer—Defendant CCSO was. Doc. 17, PageID 124. The Court finds

this issue dispositive.

“When an employee has already sued a corporate employer under Title VII, an official

capacity suit against a supervisor adds nothing to the litigation.” Campbell v. Ohio Dep’t of

Rehab. & Corr., No. 2:21-cv-4223, 2022 WL 3682293, at *5 (S.D. Ohio Aug. 25, 2022) (quoting

Ankofski v. M&O Mktg., Inc., 218 F. Supp. 3d 547, 553 (E.D. Mich. 2016)). Official capacity

liability is “simply another avenue for a plaintiff to establish liability on an employer,” as the

employer would be responsible for any relief the plaintiff is entitled to by virtue of their official

capacity suit against an employee. Maudlin v. Inside Out Inc., No. 3:13-CV-354, 2014 WL

1342833, at *4 (S.D. Ohio Apr. 3, 2014). As a consequence, suing supervisors in their official

capacities, in addition to suing the employer, is “redundant and duplicative” and warrants

dismissal. Id.

1 Because Ohio Rev. Code §§ 4112.02 et seq. utilize the same analytical framework as Title VII discrimination

claims, “the federal case law governing Title VII actions is generally applicable to cases involving alleged

violations of § 4112.” Williams v. Ford Motor Co., 187 F.3d 533, 538 (6th Cir.1999) (citations omitted). “As

such, any discussion regarding Title VII is equally applicable to [Ellis]’s state law claims for sex discrimination

under § 4112.” Vigil v. STS Sys. Integration, LLC, No. 3:18-cv-324, 2019 WL 4674562, at *3 n.1 (S.D. Ohio

Sep. 25, 2019).

Ellis sues Defendants CCSO and Kirk in his official capacity under the same

employment discrimination allegations. See Doc. 8, PageID 59–60. Her counts of sex

discrimination and retaliation make no distinction between the CCSO and Kirk (or any other

defendant for that matter). Ellis’s claims against Kirk are therefore redundant because if she

establishes liability against Kirk in his official capacity, she recovers damages from the CCSO.

As a result, the Court GRANTS Kirk’s Motion as it relates to the employment claims (Counts

I–IV) against him. See, e.g., Campbell, 2022 WL 3682293, at *5 (dismissing Title VII claims

against supervisors in their official capacity when the government entity employer was a party

to the action).2

B. Tort Claims Against Kirk.

Kirk makes two principal arguments concerning Ellis’s assault and IIED claims. He

argues that those claims should be dismissed because: (1) the claims are barred by the statute

of limitations; (2) the Court lacks subject matter jurisdiction over the state-law claims against

Kirk and the Court should decline to exercise it. Doc. 13, PageID 92–96. The Court will

address each argument in turn.

i. Statute of Limitations.

Under Ohio law, assault and IED claims have two different statutes of limitations.

Kirk contends that both claims must be dismissed because they are time-barred. Id. at PageID

92. The Court finds that Ellis’s assault and IIED claims are not entirely time barred, with the

2 Insofar as Ellis is bringing claims under Title VII and Ohio Rev. Code § 4112 against Kirk in his individual

capacity, her claims suffer the same fate. See Norman v. RK Holdings, LLP, No. 2:22-CV-3704, 2024 WL

1347448, at *3 (S.D. Ohio Mar. 29, 2024) (“Because O.R.C. 4112.08(A), like Title VII, bars Plaintiff from

bringing a claim for individual supervisor liability, in this case, his individual capacity claims against Mr.

Amrine in Count I fail to state a claim upon which relief can be granted.”).

exception that any IIED claim against Kirk that accrued during or before 2017, as stated in

the Amended Complaint, is barred by the applicable statute of limitations.

a. Assault.

The applicable statute of limitations for assault claims is “one year after the cause of

action accrues.” Ohio Rev. Code. § 2305.111(B). When the plaintiff knows the identity of the

person who allegedly committed the assault, an assault claim accrues upon “[t]he date on

which the alleged assault occurred.” Ohio Rev. Code. § 2305.111(B)(1).

Ellis alleges in her Amended Complaint that Kirk’s conduct on September 7, 2022,

amounts to assault. Doc. 8, PageID 61. Ellis filed this lawsuit on June 5, 2023, or within a

year from that alleged assault. Accordingly, the statute of limitations did not expire on the

assault claim.

b. IIED.

“The applicable statute of limitations for a claim of intentional infliction of emotional

distress under Ohio law is the four-year limitation period in Ohio Revised Code § 2305.09.”

Monak v. Ford Motor Co., 95 F. App’x 758, 761 (6th Cir. 2004) (citing Yeager v. Local Union 20,

6 Ohio St. 3d 369, 6 Ohio B. 421, 453 N.E.2d 666, 672 (Ohio 1983), abrogated on other

grounds by Welling v. Weinfeld, 866 N.E.2d 1051, 1059 (Ohio 2007)). “But claims against

employees of a political subdivision are subject to the two-year statute of limitations set forth

at Ohio Revised Code § 2744.04(A), which prevails over the general statutes of limitations

contained in R.C. Chapter 2305.” Kerr v. Pollex, No. 22-3993, 2023 U.S. App. LEXIS 21064,

at *9 (6th Cir. Aug. 11, 2023) (quotes omitted). Under Ohio law, an IIED claim “accrues and

the statute of limitations begins to run at the time the wrongful act is committed and the

emotional impact is felt.” Bremar v. Ohio Univ., 2022-Ohio-1382, ¶ 37 (Ohio App. Ct. 2022).

The only allegations in the Amended Complaint that involve Kirk include ones that

state: (1) in 2017, uninvited and against her wishes Kirk entered Ellis’s hospital room while

she was undressed; (2) in 2017, Kirk attempted to intimidate one of Ellis’s friends by insisting

that he admit that Ellis and the friend were having sexual relations; and (3) on September 7,

2022, Kirk confronted Ellis, screamed at her, and demanded that she fight him while standing

only five feet away from Ellis and wearing his service weapon and body armor. Doc. 8,

PageID 56–58. As such, regardless of whether the four- or two-year statute of limitations

applies to Ellis’s IIED claims against Kirk, any claims related to the two 2017 incidents are

time-barred. However, just as in the case of the assault claim, Ellis’s IIED claim survives

insofar as it relates to an alleged incident that occurred on September 7, 2022, well before

expiration of either the two or four-year statutes of limitations.3

ii. Subject Matter Jurisdiction.

Kirk argues that this Court does not have subject matter jurisdiction over Ellis’s tort

claims because there is “no common nucleus of operative fact” with the federal employment

claims. Doc. 13, PageID 92–93. Ellis argues that Kirk’s conduct beginning in 2017 is evidence

that proves her “continuing Title VII . . . sexual harassment claim.” Doc. 15, PageID 107–

08. For the reasons that follow, the Court finds that it has subject matter jurisdiction over the

tort claims alleged in the Complaint.

“[I]n any civil action of which the district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over all other claims that are so related to claims

3 Ellis does not make the argument that Kirk’s actions are a continuing violation concerning her IIED claim, so

it is deemed waived. See Printup v. Dir., Ohio Dep’t of Job & Family Servs., 654 F. App’x 781, 789 (6th Cir. 2016)

(holding that a party has waived a continuing violation argument when it is not raised in response to a motion

to dismiss). Regardless, “[c]ourts have been extremely reluctant to apply this doctrine outside the context of

Title VII.” Nat’l Parks Conservation Ass’n v. TVA, 480 F.3d 410, 416 (6th Cir. 2007).

in the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The

question of whether a court has properly assumed supplemental (pendent) jurisdiction

“remains open throughout the litigation.” United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86

S. Ct. 1130, 16 L. Ed. 2d 218 (1966). “[I]f it appears that the state issues substantially

predominate, whether in terms of proof, of the scope of the issues raised, or of the

comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice

and left for resolution to state tribunals.” Id. at 726–27. The test in Gibbs remains the standard

for supplemental or pendent jurisdiction:

The state and federal claims must derive from a common nucleus of operative fact.

But if, considered without regard to their federal or state character, a plaintiff’s claims

are such that he would ordinarily be expected to try them all in one judicial proceeding,

then, assuming substantiality of the federal issues, there is power in federal courts to

hear the whole.

Kubala v. Smith, 984 F.3d 1132, 1137 (6th Cir. 2021) (quoting Gibbs, 383 U.S. at 725).

In an analogous scenario, this Court has found that it had supplemental jurisdiction

over an IIED claim against a defendant supervisor where federal claims against the defendant

employer were still pending because the claims were “closely related [in] nature.” See, e.g.,

Johnson-Scott v. Risch, Case No. C-3-95-459, 1996 U.S. Dist. LEXIS 20160, at *20 (S.D. Ohio

Sep. 1, 1996). In that case, the Court found that it had supplemental jurisdiction over an IIED

claim against the defendant supervisor even after it dismissed a Title VII claim the same

defendant. Id. at *8–9, 20 (dismissing Title VII claim against the defendant supervisor in his

official capacity but retaining jurisdiction for an IIED claim against the supervisor where the

plaintiff sued the defendant employer and supervisor for claims arising out of the same set of

facts and circumstances).

The Court’s conclusion here is no different. Ellis has pled Title VII sex discrimination

and retaliation against the CCSO under a continuous violation theory. Doc. 8, PageID 59–

60. She has pled that Kirk’s 2017 conduct that includes walking into her hospital room and

watching her while she was undressed purportedly “for worker’s compensation purposes,”

and attempting to force another police officer to admit he was engaging in sexual relations

with Ellis, was part and parcel of the sexual discrimination she experienced at her work. Id.

at PageID 56–60. She also argues that the September 7, 2022, incident was part of CCSO’s

continuous conduct that amounts to a hostile work environment based on her sex. Id. at

PageID 59.

Under the circumstances, the Court finds that there is a common nucleus of fact

between the Title VII claims against the CCSO and the related state law claims asserted

against Kirk. The Court will thus exercise supplemental jurisdiction over the state law tort

claims asserted against Kirk. As a result, the Court DENIES Kirk’s Motion as it relates to

Ellis’s assault claim (Count VII) and her IIED claim (Count VI). However, the Court notes

that Ellis’s IIED claim against Kirk is limited to events that accrued within the applicable

statute of limitations; any claims against Kirk predicated on events that occurred in 2017, i.e.,

those that took place at least five years before Ellis initiated this case, are time-barred.

IV. CONCLUSION

For the reasons stated, the Court GRANTS in part, and DENIES in part, Defendant

Kirk’s Motion for Judgment on the Pleadings. The Court GRANTS Kirk’s Motion as it

relates to the employment claims (Counts I–IV) against him. The Court DENIES Kirk’s

Motion as it relates to Ellis’s assault claim (Count VII) and her IIED claim (Count VI).

However, Ellis’s IED claim against Kirk is limited to events that occurred within the

applicable statute of limitations.

SO ORDERED

September 12, 2024 f.

effery P! kins

United States District Judge

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