Jones

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CAMILLE JONES Case No. 1:25-cv-433

Plaintiff, Litkovitz, M.J.

vs.

CITY OF CINCINNATI, et al., ORDER

Defendants.

Plaintiff initially filed this action in the Court of Common Pleas for Hamilton County,

Ohio. (Doc. 2). On June 26, 2025, defendants (the City of Cincinnati (the City), the City of

Cincinnati Board of Health (the BOH), and Edward Herzig) removed the action to this Court.

(Doc. 1). The matter is now before the Court on defendants’ motion for judgment on the

pleadings (Doc. 8), plaintiff’s opposition (Doc. 9), and defendants’ reply (Doc. 11); and

plaintiff’s related motion to remand (Doc. 10), to which defendants did not file a memorandum

in opposition.1

I. Background2

Plaintiff is a physician and public health professional. From 2007 to 2019, she served as

an Assistant Health Commissioner for the Cincinnati Department of Health (CDH). She

currently serves on the board of the City of Cincinnati Primary Care Board (PCB), which

administers the City’s federally qualified health centers. The BOH is a political subdivision of

the State of Ohio (Ohio Rev. Code § 3709) that has authority over public health in the City and is

responsible for appointment of the CDH’s Health Commissioner. Plaintiff “attends BOH

1 Defendants acknowledge plaintiff filed this motion and refer to it in their reply in support of their motion for

judgment on the pleadings.

2 The following is derived from plaintiff’s complaint (Doc. 2).

meetings as one of the non-voting board members between the [PCB] and the [BOH] to provide

oversight and represent the interests of [the PCB].” (Doc. 2 at PAGEID 32, ¶ 4). Following Dr.

Melba Moore’s retirement in January 2022, plaintiff was appointed to the BOH’s Search

Committee for the CDH’s new Health Commissioner. The Search Committee was active

between 2002-23. Defendant Herzig, a member of the BOH, served as Chair of the Search

Committee. Defendant Herzig met with the City’s human resources and legal departments

regarding the search—telling the Chair of the BOH that he would handle the administrative

aspects of the search.

There were three qualified internal candidates for an interim Health Commissioner

position: Domonic Hopson (a black male), Dr. Maryse Amin (a woman of Egyptian ancestry),

and Dr. Grant Mussman (a white male). In February 2022, defendant Herzig met with each

candidate individually regarding his/her interest. Defendant Herzig knew Mr. Hopson and Dr.

Amin were interested in the permanent Health Commissioner position, and he told them during

their meetings that such interest precluded them from consideration for the interim role. At Dr.

Mussman’s meeting, defendant Herzig encouraged him to apply for the interim position.

According to the BOH meeting minutes from several days after those meetings, “[i]t was

decided by the [BOH] that no one who would possibly apply for [the permanent Health

Commissioner] position[ ] would be interim commissioner.” (Id. at PAGEID 34, ¶ 21). Based

on this policy, defendant Herzig advanced only Dr. Mussman for the interim Health

Commissioner role, and the BOH appointed Dr. Mussman. Plaintiff alleges that this policy—

prohibiting an interim role candidate from being a permanent role candidate—was a pretext for

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discrimination because it effectively excluded minority candidates from the interim Health

Commissioner role. Plaintiff alleges that other City human resources personnel “were aware of

and participated in the discriminatory interim appointment process.” (Id., ¶ 253).

By July of 2022, Dr. Mussman emailed defendant Herzig to “‘recuse himself’ from the

search process because he” now “intended to apply for the permanent [Health Commissioner]

position. . . .” (Id., ¶ 244). Given Dr. Mussman’s time as interim Health Commissioner, plaintiff

alleges that he was the “point person” in the search process, had inside knowledge, and was able

“to build relationships and demonstrate his capabilities”—giving him “significant advantages” as

a candidate for the permanent Health Commissioner role. (Id. at PAGEID 35, ¶ 26).

Ultimately, the Search Committee recommended both Dr. Mussman and Dr. Amin for the

permanent Health Commissioner role and was split three to two in favor of recommending Dr.

Mussman. Despite “previous representations” of a “two-tier interview process” with the full

BOH, the two permanent Health Commissioner candidates did not have a second interview. (Id.

at PAGEID 35, ¶ 30). In January 2023, the BOH selected Dr. Mussman for the permanent

Health Commissioner position.

Plaintiff alleges that she “raised concerns about the lack of transparency and bias in the

process during the January 24, 2023” BOH meeting. (Id., ¶ 34). On January 31, 2024, plaintiff

filed a complaint with the Ohio Civil Rights Commissioner (OCRC) alleging discrimination in

the CDH Health Commissioner hiring process. The OCRC understood plaintiff’s complaint to

have been filed on her own behalf, when it was actually filed on behalf of Mr. Hopson and Dr.

3 The complaint contains duplicate paragraph numbers for ¶¶ 23, 24, and 25. (Doc. 2 at PAGEID 34). The Court

quotes the first instance of paragraph 25 here.

4 The Court quotes the second instance of paragraph 24 here.

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Amin. Although plaintiff initially filed a petition for judicial review of that determination in the

Hamilton County, Ohio Court of Common Pleas, she dismissed that action and opted to file the

pending complaint.

Based on the foregoing, plaintiff alleges the following claims:

• Count I: a violation of Ohio Rev. Code § 4112.02 based on defendants’ discriminatory

hiring process.

• Count II: a violation of the Equal Protection clause of the Fourteenth Amendment (42

U.S.C. § 1983) related to the disparate treatment of minority candidates in the hiring

process.

• Count III: a conspiracy under 42 U.S.C. § 1985 to deprive minority candidates Equal

Protection under the Fourteenth Amendment.

• Count IV: the intentional infliction of emotional distress under Ohio law.

• Count V: the intentional interference with prospective business relations under Ohio law.

(Id. at PAGEID 36-38).

II. Legal standard

“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.” JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). Still, the Court “need not

accept as true legal conclusions or unwarranted factual inferences.” Id. at 581-82 (quoting

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Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). Put differently, defendants are entitled to

judgment under Rule 12(c) if “no material issue of fact exists and [they are] entitled to judgment

as a matter of law.” Id. at 582 (quoting Paskvan v. City of Cleveland Civ. Serv. Comm’n, 946

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

To withstand a Rule 12(c) motion for judgment on the pleadings, like a Rule 12(b)(6)

motion, “a complaint must contain direct or inferential allegations respecting all the material

elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co.,

508 F.3d 327, 336 (6th Cir. 2007) (citation omitted). “The factual allegations in the complaint

need to be sufficient to give notice to the defendant as to what claims are alleged, and the

plaintiff must plead ‘sufficient factual matter’ to render the legal claim plausible, i.e., more than

merely possible.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A “legal conclusion couched as a factual

allegation” need not be accepted as true; and “a formulaic recitation of the elements of a cause of

action” is insufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’”

to withstand a Rule 12(c) motion. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

III. Analysis

Defendants argue first that plaintiff lacks Article III standing to bring her §§ 1983 and

1985 claims because, as her complaint makes clear, she was not the direct victim of the alleged

constitutional violations. Defendants argue that plaintiff also lacks standing to bring her Ohio

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Rev. Code § 4112.02 and state law tort claims because she did not suffer any injury—including

discrimination.

Standing deficiencies aside, defendants argue that in his individual capacity, Dr. Herzig

enjoys qualified immunity from plaintiff’s § 1983 claim and statutory immunity from her state

law tort claims. Defendants argue that Ohio Rev. Code § 4112 limits liability to employers, and

Dr. Herzig is not an employer. Even if plaintiff overcame these other threshold deficiencies,

defendants argue that plaintiff’s complaint should be dismissed because it fails to allege

plausible federal and state law claims.

In both her opposition to defendants’ motion for judgment on the pleadings and her

motion to remand the matter to state court, plaintiff concedes that she does not having standing

to bring her §§ 1983 and 1985 claims. (See Doc. 9 at PAGEID 101 (“[The §§ 1983 and 1985]

claims should be dismissed for lack of Article III standing. . . .”); Doc. 10 at PAGEID 113

(“Plaintiff lacks Article III standing for her federal claims. . . .”)). Given this and the early stage

of the proceedings, plaintiff argues that the Court should decline to exercise supplemental

jurisdiction over the remaining claims. Later in her motion to remand, plaintiff argues that

remand is required any time it is determined the Court lacks subject matter jurisdiction. See 28

U.S.C. § 1447 (“If at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.”).

Defendants removed this action pursuant to 28 U.S.C. § 1441(a) (i.e., federal question

jurisdiction (id. at § 1331)). (Doc. 1 at PAGEID 1). Given plaintiff’s Article III standing

concession with respect to her federal claims, Counts II and III of her complaint will be

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dismissed for lack of subject matter jurisdiction.5 That leaves Counts I, IV, and V, plaintiff’s

state law claims.

Plaintiff’s state law claims must be remanded to the state court, and not dismissed,

because the Court cannot exercise supplemental jurisdiction over these claims. Where dismissal

of a complaint’s federal law claims is based on lack of subject matter jurisdiction, “supplemental

jurisdiction can never exist.” Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1255

(6th Cir. 1996). In Musson, the Sixth Circuit explained:

A Rule 12(b)(1) [lack of subject-matter jurisdiction] dismissal postulates that there

never was a valid federal claim. Exercise of jurisdiction on a theory of

supplemental jurisdiction would therefore violate Article III of the Constitution,

because the original federal claim would not have “substance sufficient to confer

subject matter jurisdiction on the court.” [United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 725 (1966)]. See also Bigelow v. Michigan Dep’t of Natural

Resources, 970 F.2d 154, 159 (6th Cir. 1992) (dismissal for lack of ripeness

equivalent to dismissal for lack of subject matter jurisdiction; state law claims cease

to be properly supplemental). Obviously, a district court has no discretion to exceed

the scope of its Article III power.

Musson, 89 F.3d at 1255. See also Lawless v. Trinity Fin. Servs., LLC, No. 1:19-cv-01017, 2024

WL 3455015, at *6 (S.D. Ohio July 18, 2024) (relying on Musson and holding that because the

Court dismissed all federal claims for lack of standing or lack of subject matter jurisdiction, the

remaining state law claims had to be resolved in state court), aff’d sub nom. Lawless v. T. Fin.

Servs., LLC, No. 24-3735, 2025 WL 342810 (6th Cir. Jan. 30, 2025).

Given the foregoing, defendants’ Rule 12(c) motion for judgment on the pleadings (Doc.

8) is GRANTED in part as to Counts II and III of plaintiff’s complaint. Plaintiff’s motion to

remand the action (Doc. 10) is GRANTED, and this action is REMANDED to the Hamilton

5 “Whether a party has standing is an issue of the court’s subject matter jurisdiction. . . .” Lyshe v. Levy, 854 F.3d

8 55, 857 (6th Cir. 2017).

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County, Ohio Court of Common Pleas for disposition of plaintiff's remaining state law claims.

IT IS SO ORDERED.

Date: 11/25/2025 Hern, Ke Recher

Karen L. Litkovitz

United States Magistrate Judge