# Ellis v. Clinton County Board of Commissioners

> District Court, S.D. Ohio · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10665336

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10665336

## How later opinions describe it (automated extraction)

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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665336. Public record. Not legal advice.