# Gaston v. Cuyahoga Community College

> District Court, N.D. Ohio · March 17, 2025

URL: https://www.frixlaw.com/law-library/cases/10825165

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 17, 2025
- **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/10825165

## How later opinions describe it (automated extraction)

- affirming the district court’s dismissal of the retaliation claims under Ohio law, noting that such claims “mirror the federal counterpart, and Ohio courts use federal law to interpret the Ohio provision”
- holding that EEOC charges are a prerequisite to filing a Title VII case and charges are central to the claim
- finding complaints related to general work-related issues are not indicative of complaints of discriminatory conduct against plaintiff based on her membership in a protected class

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DIANE GASTON, e¢ a/., ) CASE NO. 1:22-cv-02303
Plaintiffs,
V. JUDGE DAVID A. RUIZ
CUYAHOGA COMMUNITY
COLLEGE, et al., ) MEMORANDUM OPINION AND ORDER
Defendants.

I. Background
Plaintiffs Diane Gaston and Linda Lanier have filed an Amended Complaint raising the
following causes of action: (1) First Amendment Retaliation against all Defendants; (2)
Retaliation under Title VI against Defendant Cuyahoga Community College (“Tm-C”); (3)
Retaliation under Title VII against Defendant Tri-C; (4) Retaliation under Ohio Revised Code
(“O.R.C.”) § 4112.02(1)) against all Defendants; (5) Aiding and Abetting Discrimination under
O.R.C. § 4112.02(1) against all Defendants; (6) Retaliation Against a Public Servant for
Discharging their Duties against the individual Defendants; (7) Tampering with Evidence against
Defendants Johnson and Brazile; (8) Telecommunications Fraud against Defendant Johnson; (9)
Intimidation using a False or Fraudulent Writing against Defendants Johnson and Brazile; and
(10) Interfering with Civil and Statutory Rights against the individual Defendants. (R. 7). Now
pending is the Motion for Partial Judgment on the Pleadings filed by Defendants Tri-C, Alex
Johnson, Denise McCory, Terry Webb, Courtney Clarke, Amy Parks, and David Kuntz that
moves for dismissal of all claims save for the First Amendment retaliation claim contained im

C ount One.1 (R. 13). Plaintiffs filed a brief in opposition (R. 24), and Defendant filed a reply in
further support of the motion. For the reasons stated below, the Court GRANTS in part and
DENIES in part Defendants’ Motion for Partial Judgment on the Pleadings
II. Applicable Standard
A. Fed. R. Civ. P. 12(c)
In the Sixth Circuit, a judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure is reviewed under the “same standard as applies to a review of a motion
to dismiss under Rule 12(b)(6).” Jackson v. Prof’l Radiology Inc., 864 F.3d 463, 465-66 (6th Cir.
2017); accord K&L Trailer Leasing, Inc. v. Fellhoelter, 630 B.R. 81, 83 (Bankr. E.D. Tenn.
2021) (“Courts apply the same standard for Fed. R. Civ. P. 12(c) motions as for Rule 12(b)(6)
motions”). As explained by the Court of Appeals:
A motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) generally follows the same rules as a motion to dismiss the complaint under
Rule 12(b)(6). See D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). A
court evaluating that type of motion thus must follow the Supreme Court’s
changes to the pleading standards in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). See Engler v. Arnold, 862 F.3d
571, 575 (6th Cir. 2017). Courts must accept as true all well-pleaded factual
allegations, but they need not accept legal conclusions. Iqbal, 556 U.S. at 678.
And the well-pleaded factual allegations must “plausibly give rise to an
entitlement to relief.” Id. at 679. Pleaded facts will do so if they “allow[] the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Pleaded facts will not do so if they “are ‘merely consistent
with’ a defendant’s liability.” Id. (quoting Twombly, 550 U.S. at 557).

Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 480 (6th Cir. 2020) (emphasis added). Federal

1 In a subsequent filing, the individually named Defendants withdrew the argument—without
waiving their right to raise the argument later—that Plaintiffs’ failure to file administrative
charges against them personally entitles the individual Defendants to judgment on Plaintiffs’
R.C. § 4112 retaliation and aiding/abetting claims. (R. 17). In their reply brief, Defendants
concede that Count Two states a viable claim for Title VI retaliation. (R. 26, PageID# 436).
co urts must “construe the complaint in the light most favorable to the plaintiff, accept all well-
pleaded factual allegations as true, and draw all reasonable inferences in [the plaintiff’s] favor.”
Watkins v. Healy, 986 F.3d 648, 660 (6th Cir. 2021) (citations omitted).
III. Summary of Factual Allegations in the Amended Complaint
The amended complaint raises a civil-rights action brought against Defendant Tri-C and
seven faculty/staff members—Johnson, McCory, Webb, Clarke, Parks, Kuntz and Brazile—who
have been sued in both their official and individual capacities. (R. 7, PageID# 95-97). In January
2021, Tri-C professors Gaston and Lanier (“Plaintiffs”) reported concerns that Tri-C’s proposed
course schedule for the Fall of 2021 would have a disparate impact on African-American
students. (R. 7, PageID# 99, ¶¶27-30). Plaintiffs continued to raise concerns about scheduling
with Tri-C administration through March 2021, including concerns about Lanier’s own disparate
treatment from coworkers based on “race, gender, and advocacy for African American students.”
(R. 7, PageID#: 102-103 ¶ 36-37).
Relevant to the amended complaint, Plaintiff Gaston is an associate professor of

philosophy, humanities, and religious studies at Tri-C’s Western campus. (R. 7, PageID# 97,
¶15). Plaintiff Lanier is an assistant professor of counseling, psychological, and access services
at Tri-C’s Metro campus. Id. at ¶16. In February of 2020, Tri-C “was forced to replace traditional
in-person classes with remote instruction to limit the spread of COVID-19. It wasn’t until 2021
that Tri-C resumed offering in-person classes on its campuses.” (R. 7, PageID# 98, ¶23). In
January of 2021, the course schedule for the fall semester of 2021 was posted with registration
scheduled to open on March 22, 2021. Id. at ¶24. Plaintiffs maintain that the schedule offered
fewer in-person introductory-level classes at the Metro campus than at Tri-C’s other campuses.
Id. at ¶25. Also, Plaintiffs assert there were no in-person classes offered in Plaintiff Gaston’s
fi eld of philosophy or religious studies at the Metro campus. Id. Plaintiffs assert that Tri-C’s
Metro campus, which is located in downtown Cleveland, has a higher concentration of African-
American students than Tri-C’s other campuses. Id. at ¶26.
Plaintiffs aver that they “were concerned about the impact the proposed schedule would
have on Metro campus’s African-American students, because [African-American students]
statistically don’t perform well in online courses.” (R. 7, PageID# 99, ¶27). Beginning in
February of 2021, Plaintiffs Gaston and Lanier repeatedly reported to every level of Tri-C’s
administration their belief that the fall schedule was “racially discriminatory.” Id. at ¶30. After
not feeling satisfied with the responses of their immediate supervisor, Plaintiffs raised their
concerns over student schedules with Tri-C’s president, Defendant Johnson, in a March 17, 2021
email. (R. 7, PageID# 102-103, ¶36).
On May 21, 2021, Plaintiffs Gaston and Lanier appeared on a local television news
feature, suggesting that Tri-C’s scheduling decisions would lead to “students of color” being
“hurt the most” and lacking “the same opportunities, the same access.” (R. 7-2, PageID# 142-

143, Exh. 2). The Amended Complaint states that “[i]n addition to, and in conjunction with, her
reports regarding Tri-C’s racially discriminatory schedule, Professor Lanier raised concerns that
she was being treated differently than her department colleagues on the basis of her race, gender,
and advocacy for African-American students.” (R. 7, PageID# 103, ¶37). She identifies forms of
retaliation as being cut off from group communications, less-favorable scheduling, and a denied
request to teach a course at MetroHealth despite her right of first refusal. (R. 7, PageID#: 103-
104 ¶ 39). The Amended Complaint states that “Professor Gaston also experienced and reported
unfair treatment regarding her workload and compensation, arising shortly after she had reported
concerns about Tri-C’s Fall 2021 schedule.” (R.7, PageID# 105, ¶41). Plaintiff Gaston alleged
th at, after reporting scheduling concerns, Defendants allowed a Caucasian colleague to take
credit for her work, which resulted in denial of compensation. (R. 7, PageID# 105 ¶¶42-45).
Three days after Plaintiffs’ interview with local news aired, a virtual townhall meeting
was held wherein Plaintiffs allege they were publicly admonished. (R. 7, PageID# 107-109,
¶¶52-57).
On June 23, 2021, Defendants held pre-disciplinary hearings related to Plaintiffs’ local
news interview. (R. 7, PageID# 114, ¶78). On August 6, 2021, Plaintiffs were officially found to
have violated Tri-C’s policies, and were ordered to serve an unpaid three-day suspension. Id. at
¶81. The Amended Complaint states that “[t]hey were punished for their speech” made during a
public media appearance. (R. 7, PageID# 115, ¶¶83-84).
Plaintiffs filed an administrative grievance challenging Tri-C’s finding. (R. 7, PageID#
115, ¶85). Nearly a year later, on June 16, 2022, after Plaintiffs appealed Tri-C’s findings, Tri-C
reversed its original finding, agreed to remove the discipline, and awarded Plaintiffs backpay for
their three-day suspensions. (R. 7, PageID# 121, ¶100).

On February 2, 2022 and April 6, 2022, Plaintiffs Gaston and Lanier, respectively, filed
charges with the Ohio Civil Rights Commission. (R. 13-2, PageID#: 391; R. 14, PageID# 392-
393).
Plaintiff Gaston’s charge contained the following explanation of the charges, in their
entirety:
I. I have been employed by Respondent as a member of the faculty for about 20
years. I am currently an Associate Professor. On May 21, 2021, I participated in
an on camera interview for the Next 400 series, which highlights equity in
education and racial and social justice concerns on the news. During the
interview, I highlighted the disparity of access for the highest concentration of
African American students with merely one sentence. However, on May 24, 2021,
Respondent’s President, Dr. Alex Johnson, publicly excoriated me and another
faculty member during a virtual town hall.

II. As a result, I was subjected to a series of retaliatory measures. Specifically, I
have been disciplined, unable to properly perform my job, and isolated by other
faculty. I was told that I must completed [sic] the Religious Studies outlines to
prevent the loss of the classes because I am the only full time Religious Studies
faculty. However, Respondent allowed a White counterpart, who actually taught
those classes, not to complete the outlines for over two years and to simply retire.
In an effort to make an example of me for speaking up for African American
students, I had my selected class deleted, and force [sic] to complete curriculum
outlines for classes taught by my White former counterpart ***. Another White
faculty counterpart *** commandeered preliminary wok [sic] I completed on
other outlines as she had been allowed by Respondent to remove my name and
replace it with hers. Respondent also refused to transfer me from the West
Campus to the Metro Campus, where I originally had worked, even though there
were two vacant positions at the Metro Campus. Instead, Respondent filled those
positions with “emergency hires” who are two White adjunct lecturers.

III. Therefore, I allege Respondent has subjected me to disparate terms and
conditions of employment, unequal assignments, and discipline because of my
race (Black/African American), my color, my national origin (American), and
protected activity. Particularly, I am the only tenured faculty member in the
history of the college forced to complete outlines, while there is a history of the
college allowing my White counterparts to take credit for my completed work.
Also, a White female faculty member *** made racist and inappropriate
statements about Black males in a public college meeting and was supported for
her right to free speech. Likewise, there has never been an instance where
Respondent’s President called out a faculty member in a town hall.

(R. 14, PageID# 392-393).
Plaintiff Lanier’s charge contained the following explanation of the charges, in their entirety:
I began my employment with the Respondent on or about January 24, 2011. My
current position is Assistant Professor of Counseling. In or around March 2021, I
complained about scheduling problems that impacted students of color. In or
around May 2021, I participated in a television interview about the impact of
remote learning on students of color. Subsequently, I was subjected to different
terms and conditions of employment, including, but not limited to, being removed
as the Counterpart’s Chair of the Counseling Department, harm to my
professional reputation, and placement in isolated rooms. I was also suspended.

I believe that I was discriminated against because of my race, Black, my sex,
female, my color, dark complexion, and in retaliation for engaging in protected
activity, in violation of Title VII of the Civil Rights Act of 1964, as amended.
(R. 13-2, PageID# 391).
Each received right-to-sue letters on August 26, 2022. (R. 7, PageID# 123, ¶109).
IV. Analysis
A. Counts Three and Four: Title VII Retaliation and O.R.C. § 4112.02 Retaliation
Defendants’ motion alleges that Plaintiffs’ Title VII retaliation claim, as set forth in
Count 3, should be dismissed because Plaintiffs did not engage in protected activity and did not
exhaust administrative remedies. (R. 13, PageID# 381-382). Defendants also argue that “[f]or the
same reasons Plaintiffs did not plead viable Title VII retaliation claims [in Count Three], they
have not pled viable R.C. §4112.02(I) retaliation claims [in Count Four].” (R. 13, PageID# 382-
383).2
In Count Three, Plaintiffs assert a Title VII retaliation claim alleging that they were

2 Defendants attach Plaintiffs’ EEOC charges to their motion. (R. 13-1 & 13-2). The Court
agrees that these documents may be properly considered by the Court without converting the
motion into one for summary judgment. Defendants argue that this Court can look to the
substance of the EEOC charges to determine if administrative remedies were exhausted before
Plaintiffs brought a Title VII claim. (R. 13, PageID#: 381). Although Plaintiffs concede that
“[w]ith respect to claims involving discrimination, a court deciding a motion under Rule 12(b)(6)
or 12(c) may consider an EEOC charge or proceedings to evaluate whether procedural
requirements were satisfied, such as the exhaustion of administrative remedies,” Plaintiffs,
nevertheless, maintain that the Court may not consider EEOC proceedings to evaluate the
substance or truth of Plaintiffs’ claims. (R. 24, PageID# 415-16, 419). In the Amended
Complaint, Plaintiffs list the filing of EEOC charges as protected activity for which they claim
retaliation under Title VII. (R. 7, PageID#: 128 ¶ 141-43). These charges are central to Plaintiffs’
claims. Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (holding that EEOC charges
are a prerequisite to filing a Title VII case and charges are central to the claim); Jones v. Truck
Drivers Loc. Union No. 299, 748 F.2d 1083, 1086 (6th Cir. 1984) (“Filing an EEOC charge
against a party is a necessary prerequisite to suit.”); OverDrive, Inc. v. Open eBook F., No. 1:17
CV 165, 2017 WL 11367906, at *3 (N.D. Ohio Dec. 5, 2017) (Oliver, J.) (“[d]ocuments attached
to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to the plaintiff’s claim”). Because Plaintiffs referenced the EEOC
charges in the Amended Complaint and the charges are central to Plaintiffs’ claims, this Court
can consider the EEOC charges in a Rule 12(c) motion.
re taliated against for “oppos[ing] an unlawful discriminatory practice or because they made a
charge or participated in any manner in an EEOC proceeding.” (R. 7, PageID# 127). In Count
Four, Plaintiffs assert a violation of O.R.C § 4112.02(I) stemming from alleged retaliation for
opposing an unlawful discriminatory practice. (R. 7, PageID# 130). Count Four, however, does
not identify the alleged “unlawful discriminatory practice.” Id.3
Defendants argue that Plaintiffs’ retaliation claim fails, because Plaintiffs fail to allege
retaliation for opposing an unlawful discriminatory practice. (R. 13, PageID#: 381). Pursuant to
U.S.C § 2000e-3(a), “[i]t shall be an unlawful employment practice for an employer to
discriminate against any of his employees … because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.”
Defendants maintain that Plaintiffs’ activity was rooted in dissatisfaction with Tri-C’s
scheduling decisions that ostensibly had a disparate impact on African-American students—and

not any opposition to an employment practice made unlawful by Title VII. (R. 13, PageID# 381).
Plaintiffs argue that an employee engages in protected activity under Title VII by alleging

3 Defendants assert that Count Four fails for the same reasons as Count Three. (R. 13, PageID#
382). Plaintiffs concede that “[b]ecause of the similarities between RC §4112.02(1) and Title
VII, Ohio courts look to federal case law for assistance in interpreting RC §4112.02(1) retaliation
claims.” (R. 24, PageID# 422). “Ohio courts have held that ‘[f]ederal law provides the applicable
analysis for reviewing retaliation claims’ brought under Ohio Rev. Code § 4112.02(I).” Braun v.
Ultimate Jetcharters, LLC, 828 F.3d 501, 510 (6th Cir. 2016) (citing Baker v. Buschman Co., 127
Ohio App.3d 561, 713 N.E.2d 487, 491 (Ohio Ct. App.1998); Plumbers & Steamfitters Joint
Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St.2d 192, 421 N.E.2d 128, 131
(Ohio 1981)); see also Threat v. City of Cleveland, 6 F.4th 672, 681 (6th Cir. 2021) (affirming
the district court’s dismissal of the retaliation claims under Ohio law, noting that such claims
“mirror the federal counterpart, and Ohio courts use federal law to interpret the Ohio provision”).
Therefore, Counts Three and Four rise or fall together, as the same analysis applies to each.
co nduct that falls within one of the statute’s two clauses: the opposition clause or the
participation clause. (R. 24, PageID# 419) (citing Niswander v. Cincinnati Ins. Co., 529 F.3d
714, 720 (6th Cir. 2008) (“Title VII forbids an employer from “discriminat[ing] against any of
his employees ... because [the employee] has opposed any practice made an unlawful
employment practice by [Title VII] [the so-called ‘opposition clause’], or because [the
employee] has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII] [the so-called ‘participation clause’].”
Unlawful employment practices under Title VII include any actions taken on the basis of race,
color, religion, sex, or national origin that “discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment.”) (citations omitted)). Plaintiffs
contend they satisfied the participation clause by filing EEOC charges. (R. 24, PageID# 419-
420). Alternatively, Plaintiffs contend they did more than complain about discriminatory
treatment of students, but also voiced complaints about discriminatory treatment of themselves
and of Black female employees. (R. 24, PageID# 420, citing R. 7 at ¶¶37-46).

1. Exhaustion
Defendants argue that Plaintiff’s claims are unexhausted, arguing that “[b]ecause
Plaintiffs never filed a charge alleging retaliation for speaking-up about employment
discrimination, they did not exhaust their administrative remedies.” (R. 13, PageID# 382).
Before filing suit in federal court, Title VII plaintiffs must first exhaust their
administrative remedies by filing a charge of discrimination with the EEOC and receiving a
right-to-sue letter. Alexander v. Univ. of Memphis, No. 20-5426, 2021 WL 2579973, at *3 (6th
Cir. June 7, 2021) (citing Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir. 2018)).
However, the EEOC exhaustion requirement is not jurisdictional, but instead “it is a claim-
pr ocessing rule.” Id. (citing George v. Youngstown State Univ., 966 F.3d 446, 469 (6th Cir.
2020); Adamov v. U.S. Bank Nat’l Ass’n, 726 F.3d 851, 855–56 (6th Cir. 2013)). Nevertheless,
“a claim-processing rule must be enforced if properly raised by the employer, as the University
did in this case.” Id. (citing Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17
(2017)). Furthermore, the Sixth Circuit Court of Appeals has explained as follows:
“As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that
were not included in [her] EEOC charge.” Younis v. Pinnacle Airlines, Inc.,
610 F.3d 359, 361 (6th Cir. 2010). A plaintiff’s EEOC charge “must be
‘sufficiently precise to identify the parties, and to describe generally the action or
practices complained of.’ ” Id. (quoting 29 C.F.R. § 1601.12(b)). But because
employees typically file EEOC charges without the benefit of legal assistance,
“their pro se complaints are construed liberally, so that courts may also consider
claims that are reasonably related to or grow out of the factual allegations in the
EEOC charge.” Id. at 362. The district court correctly recognized that the box that
the plaintiff checked on the EEOC complaint form is not dispositive as to the
scope of her charge. Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 379–80
(6th Cir. 2002). But here, Alexander not only failed to indicate that she was
asserting a race-discrimination charge against the University, but neither of her
EEOC charges contained factual allegations that supported a claim of racial
discrimination.

Alexander v. Univ. of Memphis, No. 20-5426, 2021 WL 2579973, at *4 (6th Cir. June 7, 2021)
(emphasis added).
The EEOC charges, reproduced verbatim above, did not identify any unlawful
employment practice, but rather only the alleged retaliation for complaining of a scheduling
practice that impacted students—not employees or faculty. Plaintiff Gaston’s assertion that part
of the alleged retaliation included completing outlines in place of a retiring White professor does
not identify an unlawful discriminatory practice made illegal by Title VII. (R. 14, PageID# 392-
393). Plaintiff Lanier also only identifies retaliation for speaking out about student schedules,
though she includes a conclusory assertion that she was discriminated against because of race
and sex. (R. 13-2, PageID# 391). Thus, the Court finds that the claims contained in the EEOC
ch arges are not sufficient to prompt the EEOC to investigate retaliation charges related to an
unlawful employment practice.
It is true that retaliation claims “are generally excepted from this [exhaustion]
requirement because they usually arise after the filing of the EEOC charge, or in the case of a
federal employee under the Rehabilitation Act, after the filing of a discrimination complaint with
the agency.” Coats v. McDonough, 2021 WL 5846550, at *9 (M.D. Tenn. Dec. 9, 2021) (quoting
Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998)). The Sixth Circuit
explained that “[f]ederal courts do not have subject matter jurisdiction to hear Title VII 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….” Abeita, 159 F.3d 246 at 254. Although retaliation
claims are generally excepted from this filing requirement because they usually arise after the
filing of the EEOC charge, “this exception to the filing requirement does not apply to
retaliation claims based on conduct that occurred before the EEOC charge was filed.” Id. at
254 (emphasis added). Therefore, to the extent Plaintiffs believe there was some form of Title

VII retaliation unrelated to their complaints related to student scheduling but prior to the filing of
their EEOC charges, such alleged retaliation had to be reasonably referenced in their EEOC
charges in order to grow from those claims. See, e.g., Oliver v. Titlemax, 149 F. Supp. 3d 857,
864 (E.D. Tenn. 2016) (“if an EEOC charge does not properly allege a claim for retaliation, the
court will only have jurisdiction over a claim for retaliation arising from filing the EEOC charge
itself.”).
Indeed, Defendants argue that, to the extent Plaintiffs allege post-EEOC charge
retaliation, such a claim can only be considered exhausted if they are “reasonably related” or
“grow out” of the factual allegations actually contained in the EEOC charge. (R. 26, PageID#
43 7, citing Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010)). Defendants’
assertion is supported by their cited authority. In order for an uncharged claim to be considered
exhausted, the facts of the charged claim must be closely related enough to “prompt the EEOC to
investigate a different, uncharged claim.” Younis, 610 F.3d at 362 (citing Davis v. Sodexho, 157
F.3d 460, 463 (6th Cir. 1998)). Where the actually charged claim fails to allege any Title VII
discrimination, the aforementioned standard is not satisfied. See, e.g., Russ v. Memphis Light Gas
& Water Div., 720 Fed. App’x 229, 236-37 (6th Cir. 2017) (rejecting argument that Title VII
claim was exhausted where plaintiff checked “race” on her EEOC intake questionnaire, but
where her actual EEOC charges only mentioned discrimination on basis of disability).
The Court agrees that any alleged retaliation related to any conduct that pre-dates the
Plaintiffs’ opposition to student scheduling practices is unexhausted. Furthermore, with respect
to any other unnamed retaliation claims post-dating the EEOC charge that are contained in the
Amended Complaint, such charges do not reasonably grow out of or relate to the complained of
conduct related to student scheduling. As Plaintiffs did not actually assert any unlawful

employment practice in their EEOC charges, any claim that Plaintiffs were retaliated against for
filing the EEOC charges fail. Therefore Counts Three and Fourt must be dismissed as
unexhausted.
2. Participation Clause
Defendants also argue that the Amended Complaint, as well as the EEOC charges, only
allege that Plaintiffs complained about a potential discriminatory impact on students and not any
unlawful employment practice that was utilized against employees. Indeed, while Gaston’s
charge highlights a number of alleged retaliatory measures that resulted in her being assigned
tasks that had previously been assigned to a white faculty member, she does not identify any
em ployment practice that she opposed. Further, the retaliation Plaintiff allegedly experienced
was for speaking out on behalf of students, based on both the Amended Complaint and her
EEOC charge. (R. 7 & 14). Lanier’s EEOC charge also does not allege that she complained of or
challenged any unlawful employment practice, only discussing the retaliation she allegedly
endured for “complain[ing] about scheduling problems that impacted students of color.” (R. 13-
2).
Plaintiffs’ counter that the participation clause only requires that an employee file a
formal charge or otherwise assist with such proceedings under Title VII. (R. 24, PageID# 419-
420). Plaintiffs’ reliance on Prida v. Option Care Enterprises, Inc., is unhelpful, as that decision
merely states that “[p]articipation requires, at a minimum, that the employee has filed a formal
EEOC charge or otherwise instigated proceedings under Title VII.” 2023 WL 7003402 *6 (N.D.
Ohio Oct. 24, 2023) (emphasis added). While Title VII affords broader protections under the
participation clause than the opposition clause, see e.g. Booker v. Brown & Williamson Tobacco
Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (“The ‘exceptionally broad protection’ of the

participation clause extends to persons who have ‘participated in any manner’ in Title VII
proceedings” and “[p]rotection is not lost if the employee is wrong on the merits of the charge”),
Prida does not stand for the proposition that the filing of an EEOC charge automatically satisfies
the participation requirement. As discussed above in the exhaustion analysis, Plaintiffs’ EEOC
charges only alleged retaliation for complaints concerning student scheduling and other potential
charges do not arise from those same set of facts.
Plaintiffs have not identified any authority suggesting that complaints related to an
employer’s actions affecting students—or analogously customers, clients, or patrons—satisfies
the participation clause. Conversely, in Johnson v. Farmington Pub. Sch., 2024 WL 1395140
(E .D. Mich. Mar. 31, 2024), another district court in this circuit found that the following
criticisms leveled by plaintiff, who served as a school district’s assistant superintendent of DEI,4
did not constitute protected activity under Title VII or related Michigan law: (1) criticism that the
superintendent failed to recommend a school teacher, who used a racial epithet against a student,
be fired; (2) generalized complaints that “the district was racist, that people weren’t changing;”
and (3) generally advocating for African-American students. As in the case at bar, the Johnson
plaintiff complained about policies that allegedly had a negative impact on students—not
unlawful employment practices. As such, Plaintiffs have not sufficiently alleged that they
engaged in protected activity under the participation clause.
2. Opposition Clause
As stated above, the opposition clause of Title VII prohibits an employer from
discriminating against an employee who “opposed any practice made an unlawful employment
practice by [Title VII].” 42 U.S.C. §2000e-3(a). Because Plaintiffs did not oppose an unlawful
employment practice, Defendants allege there was no protected activity—an essential component

of Title VII and state law retaliation claims. (R. 13, PageID# 381-382). Plaintiffs argue that
opposing the alleged discriminatory scheduling policy and filing EEOC charges were protected
activity under both the opposition and participation clauses of Title VII. (R. 24, PageID#: 419-
420) (citing without explanation Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir.
2008)).
Because neither Gaston nor Lanier’s Charges alleged retaliation for speaking-up about or
opposing an unlawful employment practice, Plaintiffs’ Title VII claims are untenable. See, e.g.,

4 “DEI” stands for diversity, equity, and inclusion.
B alding-Margolis v. Cleveland Arcade, 352 Fed. App'x 35, 45 (6th Cir. 2009) (finding
complaints related to general work-related issues are not indicative of complaints of
discriminatory conduct against plaintiff based on her membership in a protected class). The Sixth
Circuit has emphasized that “a vague charge of discrimination in an internal letter or
memorandum is insufficient to constitute opposition to an unlawful employment practice. An
employee may not invoke the protections of the Act by making a vague charge of discrimination.
Otherwise, every adverse employment decision by an employer would be subject to challenge
under either state or federal civil rights legislation simply by an employee inserting a charge of
discrimination.” Id. (quoting Fox v. Eagle Distrib. Co., 510 F.3d 587, 591-92 (6th Cir. 2007)).
Herein, Plaintiffs allegation—that scheduling policies disadvantaged African-American
students—even if coupled with conclusory allegations of racism against Plaintiffs themselves,
simply do not sufficiently allege any opposition to an unlawful employment practice. As such,
Plaintiffs have not sufficiently alleged that they engaged in protected activity under the
opposition clause. Therefore, the Court grants Defendants’ motion for judgment on the pleadings

with respect to Counts Three and Four.
Finding that Plaintiffs have failed to allege actionable claims under Counts Three and
Four does not, however, impact their claims in Counts One and Two, which revolve around the
same nucleus of alleged facts but are not challenged by Defendants’ motion.
B. Count Five: Aiding and Abetting
In Count Five, Plaintiffs allege that individual Defendants unlawfully aided and abetted
discrimination in violation of O.R.C. §§ 4112.02(J) and 4112.99. However, the underlying
premise of this claim is that these Defendants aided and abetted retaliation for opposing an
unlawful employment practice as stated in Count Four, O.R.C. § 4112.02(I). (R. 7, PageID# 131,
¶1 62). Because Plaintiff’s Count Four claim is dismissed, Plaintiffs cannot maintain an aiding
and abetting claim related to this same dismissed claim premised on a violation of O.R.C. §
4112.02(I). This Court has similarly held as such in the past. See, e.g., Rogers v. Horwitz, 2023
WL 6383796 at *11 (N.D. Ohio Sep. 29, 2023) (“claim for aiding and abetting disparate
treatment under Ohio law must also fail, since the underlying claim fails”) (citing Weinrauch v.
Sherwin-Williams Co., 2019 WL 3007031, at *14 (N.D. Ohio July 10, 2019) (“Where a court
finds that a defendant is entitled to summary judgment on the underlying claims of
discrimination and retaliation, the court must also necessarily grant summary judgment on the
claim of aiding and abetting those claims.”) Therefore, Plaintiff’s derivative claim in Count Five
is also dismissed.
C. Counts Six Through Ten: Statute of Limitations
The remaining Counts of the Amended Complaint—Counts Six through Ten—are all
premised on civil liability for alleged criminal acts pursuant to O.R.C. § 2307.60. Defendants
assert that claims brought pursuant to O.R.C. §2307.60 are subject to a one-year statute of

limitations. (R. 13, PageID# 384-385). Because the most recent factual allegations underlying
these claims allegedly occurred on August 6, 2021, Defendants maintain that the statute of
limitations began running the next day and expired before this action’s commencement on
December 22, 2022. Id.
Plaintiffs’ opposition brief does not challenge the date the statute of limitations began to
run on Counts Six through Ten. (R. 24, PageID# 425-427). Instead, Plaintiffs assert that a six
year statute of limitations should apply. Id.
Numerous federal courts in this district have addressed how Ohio’s statute of limitations
laws interact with O.R.C. § 2307.60(A)(1), and they have nearly uniformly concluded that a one-
ye ar statute of limitations applies:
When interpreting a State statute, the Court must follow State interpretations of
the statute and predict how the State’s highest court would rule where, as here, it
has not done so. Bevan & Assocs., LPA, Inc. v. Yost, 929 F.3d 366, 374 (6th Cir.
2019). Every court that has considered the issue, State or federal, applies a one-
year limitations period to claims under Section 2307.60. Plaintiff cites no case
casting doubt on this conclusion, and the Court’s research has not located any.
Based on these longstanding, uniform rulings, the Court is hard pressed to reach
any other conclusion.

Brack v. Budish, 539 F.Supp.3d 794, 800 (N.D. Ohio 2021); see also Marquardt v. Carlton, 2019
WL 1491966, at *2 (N.D. Ohio Apr. 2, 2019) (finding that claims brought under O.R.C. §
2307.60(A)(1) are subject to a one-year statute of limitations, because the statute contemplates a
penalty); McPherson v. Cuyahoga Cnty., No. 1:20-CV-00639, 2021 WL 2841582, at *6 (N.D.
Ohio July 8, 2021) (same); Kiekisz v. Cuyahoga Cnty. Bd. of Commissioners, 2021 WL 5193985,
at *5 (N.D. Ohio Nov. 9, 2021) (same); Roarty-Nugent v. Cuyahoga Cnty., 2020 WL 5530354, at
*6 (N.D. Ohio Sept. 15, 2020) (same); see also Duffey v. Pope, 2012 WL 4442753, at *7 (S.D.
Ohio 2012) (noting that Ohio courts “clearly hold that Ohio Revised Code § 2307.60 is a penalty
statute and is subject to the one year statute of limitations found in § 2305.11(A)[ ]”).
Specifically, O.R.C. § 2305.11(A) states that “[a]n action for libel, slander, malicious
prosecution, or false imprisonment, an action for malpractice other than an action upon a
medical, dental, optometric, or chiropractic claim, an action for legal malpractice against an
attorney or a law firm or legal professional association, or an action upon a statute for a penalty
or forfeiture shall be commenced within one year after the cause of action accrued ….”
(emphasis added). Conversely, O.R.C. § 2305.07(B) states that “[a]n action upon a liability
created by statute other than a forfeiture or penalty shall be brought within six years after the
cause of action accrued.” (emphasis added).
Plaintiffs rely on an outlying state appellate court holding, Harris v. Cunix, 2022-Ohio-
839, ¶ 14, 187 N.E.3d 582, 586 (Ohio Ct. App. 2022) to argue that the six-year limitations
should apply because the statute is remedial rather than penal. This Court is not convinced a lone
state appellate court’s holding should upend the nearly unanimous case law on this issue. The
Court does acknowledge that in Brack v. Budish, another judge from this Court noted that the
arguments in favor of the six-year statute of limitations “on a blank slate might well carry the
day” but conceded that—because he had to predict how the State’s highest court would rule—the
one-year statute of limitations applies “[b]ased on the uniform authority in the State and federal
courts that have considered the issue.” 539 F. Supp. 3d at 800-801; but see Garner v. Cleveland
Clinic Foundation, 735 F. Supp.3d 867 (N.D. Ohio May 29, 2024) (while acknowledging that
“the overwhelming majority of courts that have considered this issue have held it was penal”
finding the arguments in favor of construing the statute as remedial “more persuasive”). This
Court, consistent with the overwhelming majority of decisions finds that the one-year statute of
limitations applies.

Because there is no dispute that Counts Six through Ten were filed over a year after the
factual predicate of the claims in these counts, Counts Six through Ten are hereby dismissed as
untimely.
V.Conclusion
For the foregoing reasons, Defendant’s Rule 12(c) motion for partial judgment on the
pleadings (R. 13) is GRANTED in part and DENIED in part. The motion is DENIED with
respect to Count Two, as Defendants have conceded that Count Two sufficiently pleads a viable

cause of action. (R. 26, PageID# 436). The motion is GRANTED with respect to Counts Three
through Ten and those causes of action are hereby DISMISSED.
IT IS SO ORDERED.
F
s/ David A. Ruiz
David A. Ruiz
United States District Judge
Date: March 17, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10825165. Public record. Not legal advice.