Al-Sabur

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ARSHAD AL-SABUR,

:

Plaintiff,

Case No. 2:25-cv-252

Chief Judge Sarah D. Morrison

v.

Magistrate Judge Kim Jolson

COLUMBUS BOARD OF

EDUCATION, et al.,

:

Defendants.

OPINION AND ORDER

Arshad Al-Sabur filed an Amended Complaint (Am. Compl., ECF No. 16)

against the Columbus Board of Education1 and Penny Roth alleging that they

discriminated and retaliated against him when he was working as a teacher in the

Columbus City Schools. Ms. Roth has moved to dismiss Count I of the Amended

Complaint and the Board has moved to dismiss portions of Counts II and IV. (Mot.,

ECF No. 17.) The Motion is ripe for consideration.

I. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

1 Although Columbus City Schools is named in the Amended Complaint, the

parties stipulated that the proper defendant is the Columbus Board of Education.

(ECF No. 24.)

(internal alteration and quotations omitted). A complaint which falls short of the Rule

8(a) standard may be dismissed if it fails to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a probability requirement, but it asks

for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Id. (citing Twombly, 550 U.S. at 555.) “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. In reviewing a motion to dismiss, the Court “construe[s] the complaint

in the light most favorable to the plaintiff[.]” DirecTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007). Additionally, in reviewing such a motion a court “may consider

the Complaint and any exhibits attached thereto, public records, items appearing in

the record of the case and exhibits attached to defendant’s motion to dismiss so long

as they are referred to in the Complaint and are central to the claims contained

therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).

B. Dismissal of Count I against Ms. Roth

Count I is an FMLA retaliation claim against both Defendants.

Under the FMLA, employees who suffer from “a serious health condition that

makes [them] unable to perform the function of [their] position” may take up to

twelve weeks of leave per year. 29 U.S.C. § 2612(a)(1)(D). Employers may not

“interfere with, restrain, or deny the exercise of or the attempt to exercise, any right

provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). Nor may employers “discharge

or in any other manner discriminate against any individual for opposing any

practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2). “Employers who

violate these provisions of the Act may be held liable to the employee for damages

and other equitable relief.” Parks v. UPS Supply Chain Sols., Inc., No. 11-404, 2014

WL 414230, *6 (E.D. Ky. Feb. 4, 2014), aff’d, 607 F. App'x 508 (6th Cir. 2015).

Under the FMLA, an “employer” is a person engaged in commerce who

employs 50 or more people. 29 U.S.C. § 2611(4)(A)(i). This definition includes “any

person who acts, directly or indirectly, in the interest of an employer.” 29 U.S.C.

§ 2611(4)(A)(ii)(I). A separate section explicitly subjects public agencies to the

FMLA. 29 U.S.C. § 2611(4)(A)(iii). But the statute lacks clarity on which provisions

apply to which categories of employers, so a circuit split has emerged regarding

whether a public agency supervisor can be individually liable under the FMLA. See

Cornell v. Rogers, No. 1:20-cv-973, 2021 WL 4844066, *4 (S.D. Ohio Oct. 18, 2021)

(Black, J.) (discussing the split). The Sixth Circuit has definitively instructed that

“the FMLA’s text and structure reveals that the statute does not impose individual

liability on public agency employers.” Mitchell v. Chapman, 343 F.3d 811, 829 (6th

Cir. 2003).

Mr. Al-Sabur concedes that, under Mitchell, his claim for damages against

Ms. Roth is barred. He argues that his FMLA claim against Ms. Roth is proper to

the extent he seeks equitable relief. (Resp., ECF No. 22, PAGEID # 181, citing

Cimerman v. Cook, 561 F. App’x 447, 450 (6th Cir. 2014).) The equitable relief he

seeks is an injunction requiring the Board of Education to abolish discrimination

and retaliation, requiring allocation of funding and trained staff to implement

changes, requiring removal of supervisors who engage in discrimination or other

wrongful conduct, creating processes for investigating complaints, and requiring

mandatory training for employees. (Am. Compl., PAGEID # 142).

As to Ms. Roth, Mr. Al-Sabur alleges that she is the workers’ compensation

coordinator, she was the point of contact with whom he discussed his non-workers’

compensation injury, and she was involved in the denial of his two requests for

accommodations. (Id., PAGEID # 129.) Based on these allegations, he argues that

Ms. Roth “had substantial control over [his] FMLA rights” and she is “an

appropriate defendant for claims seeking equitable relief to remedy FMLA

violations.” (Resp., PAGEID # 182.) But he has not alleged that Ms. Roth has the

authority or ability to carry out any of the equitable relief he seeks. Even if Ms.

Roth had substantial control over his FMLA rights, he is not seeking an

accommodation or reinstatement; he is seeking district-wide changes in funding,

training, and staffing.

Count I against Ms. Roth is DISMISSED.

B. Dismissal of portions of Counts II and IV

Counts II and IV of the Complaint are disability discrimination claims

brought under the Americans with Disabilities Act and Ohio law against the Board.

Defendants argue the Court should dismiss Mr. Al-Sabur’s allegations and claims

relating to actions that occurred more than 300 days before he dually filed his

charge of discrimination.

“Under the ADA, a claimant who wishes to bring a lawsuit claiming a

violation of the ADA must file a charge of discrimination with the [EEOC] within

300 days of the alleged discrimination.” Parry v. Mohawk Motors of Mich., Inc., 236

F.3d 299, 309 (6th Cir. 2000) (citing 42 U.S.C. §§ 12117(a), 2000e–5(e)(1); Jones v.

Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000)). And under Ohio law, a

claimant who wishes to bring a lawsuit must have “first filed a charge with the Ohio

civil rights commission … with respect to the practice complained of in the

complaint for the civil action within the time period required under that section.”

Ohio Rev. Code § 4112.052(B)(1)(a). “Failure to timely exhaust administrative

remedies is an appropriate basis for dismissal of ... [an] ADA action.” Williams v.

Nw. Airlines, 53 F. App'x 350, 351 (6th Cir. 2002) (citing Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990)); Smith v. STERIS Corp., No. 1:24 CV 00319, 2024

WL 1656580, *6 (N.D. Ohio Apr. 17, 2024) (same under Ohio law).

“The exhaustion requirement is satisfied where the claim can be ‘reasonably

expected’ to grow out of the factual allegations in the EEOC charge.” Fisher v. N-

Stock Box, Inc., No. 1:23-cv-15, 2025 WL 1141842, *2 (S.D. Ohio Apr. 16, 2025)

(Hopkins, J.). The Sixth Circuit has referred to this as the “expected scope of

investigation test.” See Wiegel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 380–

81 (6th Cir. 2002). “Accordingly, ‘where facts related with respect to the charged

claim would prompt the EEOC to investigate a different, uncharged claim, the

plaintiff is not precluded from bringing suit on that [additional] claim.” Spengler v.

Worthington Cylinders, 615 F.3d 481, 490 (6th Cir. 2010) (citation omitted); see

Schwendeman v. Marietta City Schools, 436 F. Supp. 3d 1045, 1059 (S.D. Ohio 2020)

(Marbley, J.) (“Ohio courts ‘look to regulations and cases interpreting the [ADA] for

guidance in [their] interpretation of Ohio law.” (citation omitted)).

Where, as here, a plaintiff files a charge of discrimination pro se, the charge

must be liberally construed. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th

Cir. 2010) (“[B]ecause aggrieved employees – and not attorneys – usually file

charges with the EEOC, 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.”). At the same time, “[t]he charge must be

‘sufficiently precise to identify the parties, and to describe generally the action or

practices complained of.’” Id. at 361 (6th Cir. 2010) (quoting 29 C.F.R. § 1601.12(b)).

While EEOC charges are meant to be liberally construed, the Sixth Circuit has

made clear: “the liberal construction to be given charges filed by lay complainants

pertains to legal and procedural technicalities. It cannot extend to include facts and

claims not alleged.” Jones, 209 F.3d at 854.

Mr. Al-Sabur dually filed a Charge of Discrimination with the EEOC and the

Ohio Civil Rights Commission on August 22, 2023. (ECF No. 22-1.) The allegations

in the Amended Complaint addressing conduct more than 300 days before the

Charge was filed are in paragraphs 30–54, wherein Mr. Al-Sabur alleges that, in or

around August 2022, he made a Report of Discrimination regarding co-worker

discrimination and discrimination against students. (See Am. Compl., ¶¶ 30–54.) He

claims that the Board of Education’s failure to investigate his complaint is an

adverse action.

Assuming the Board’s failure to investigate was an adverse action, he

concedes that it happened outside the limitations period for his ADA claim. (Resp.,

PAGEID # 183.) He argues the Board can still be held liable under state law, which

allows two years from the alleged unlawful discriminatory practice to file a charge

of discrimination. (Id., PAGEID # 185 (citing Ohio Rev. Code § 4112.051(C)(2)).).

But his Charge did not include the August 2022 disability discrimination allegation

and that allegation could not be reasonably expected to grow out of the factual

allegations he included in his Charge.

Mr. Al-Sabur’s dually filed Charge states:

I believe that I am a victim of retaliation and ADA. My employer was

informed that I am handicapped and I have an ADA disability at my

hire. I requested ADA accommodations from management, and my

doctor requested accommodations for me as well. Based upon my

employer breaking the law, I am forced to resign due to a lack of

accommodations.

(ECF No. 22-1.) Mr. Al-Sabur alleged that he is disabled, that he and his doctor

requested accommodations (that were apparently not granted), and, as a result, he

was forced to resign. He does not hint at any discrimination by co-workers or any

failure to investigate complaints thereof – both of which occurred before he

requested an accommodation. It cannot be said that it would have been reasonable

to investigate Mr. Al-Sabur’s August 2022 Report of Discrimination because that

allegation is unrelated to what he included in his charge.

Accordingly, the portions of Counts II and IV related to the August 2022

Report of Discrimination are DISMISSED.

II. CONCLUSION

Accordingly, Defendants’ Motion for Partial Dismissal (ECF No. 17) is

GRANTED. Count I is DISMISSED as to Ms. Roth and Counts II and IV are

DISMISSED to the extent that they allege claims based on an August 2022 Report

of Discrimination.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON, CHIEF JUDGE

UNITED STATES DISTRICT COURT