IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sara E. Siegler,

Plaintiff

 v.

Ohio State University, et al.,

Defendants.

:

:

:

:

:

Civil Action 2:11-cv-170

Judge Watson

Magistrate Judge Abel

INITIAL SCREENING REPORT AND RECOMMENDATION

Plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C.

§1915(b) is GRANTED.

It is ORDERED that plaintiff be allowed to prosecute this action without

prepayment of fees or costs and that judicial officers who render services in this

action shall do so as if the costs had been prepaid.

This matter is now before the Magistrate Judge for an initial screening of the

complaint under 28 U.S.C. §1915(e)(2) to identify cognizable claims, and to dismiss

the complaint, or any portion of it, which is frivolous, malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 608-09

(6th Cir. 1997).

Named in the complaint as defendants are: The Ohio State University; E.

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 Gee is not listed as a defendant in the caption of the complaint (a chart

attached to the complaint form). PAGEID ## 93-94. He is listed as a party in the

parties section of the complaint. PAGEID ## 103.

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Gordon Gee1

, President of The Ohio State University; The Ohio State University

Medical Center; Dr. Stanford H. Barsky, former chair of the OSU Department of

Pathology; Larry Marvin Lewellen, a Vice President for Human Resources at the

time of the events alleged in the complaint; Michelle Geiman, an Organization and

Human Resources Consultant, OSU Office of Human Resources; Stephanie Dawn

Berland, an Organization and Human Resources Consultant, OSU Office of Human 

Resources; Olga Esquivel-Gonzalez, an Organization and Human Resources

Manager, OSU Office of Human Resources; The Ohio State University Office of

Legal Affairs; Ms. Kimberly C. Shumate, an attorney assigned by the Office of Legal

Affairs to handle Siegler’s cases; Katrina Muska Duff, a fiscal coordinator and

human resources consultant for OSU Department of Pathology; Katherine Hanby

Dillingham, the Director of Human Resources for the OSU College of Medicine; 

Donald Boyd Gibson, a labor specialist for OSU Office of Human Resources; Laurie

Ann Johnson, Director of Operations, OSU Department of Pathology and later

Assistant Director of programs and research science; Dr. Scott Douglas Jewell,

former CALGB PCO Dierctor; Dr. Leona Bell Ayers, Principal Investigator, OSU

Department of Pathology, AIDS and Cancer Specimen Resources; Dr. Amy Gewirtz,

Vice Chair and Medical Director of Clinical Laboratories, OSU Department of

Pathology; Dr. Todd Gerard Guttman, Vice President of OSU’s Office of Research

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 This initial screening report and recommendation summarizes Plaintiff’s

factual allegations for the sole purpose of providing a context for the Magistrate

Judge’s determination as to whether or not the complaint is “frivolous, malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief”. It does not attempt to

adjudicate the truth or falsehood of any of Plaintiff’s allegations, either by

summarizing them or by omitting them.

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Compliance; Dr. Wendy L. Frankel, Principal Investigator for HTRN at OSU and, in

2010, promoted to Director of CALGB PCO; Daniel C. Rohrer, formerly CALGM

PCO coordinator/Clinical Research Data Manager; Sarah Nelson, a coworker of

Siegler’s; Nicole M. King, a coworker of Siegler’s; Amy Elise Augustine, an employee

at CALGB PCO range of motion 2008 to 2010; Laura Kathleen Melton, student

employee for OSU Pathology in 2008 who became a full-time Clinical Laboratory

Technician in 2008; Kelly M. Rosborough, a CALGB PCO CRDC from 2005 or 2006

until the spring of 2008 and now employed at the OSU Department of

Anesthesiology; Kathleen Simendinger, beginning in 2008, a Special Assistant for

Biorepository and Biospecimen Resource at the Polaris Innovation Centre; Mrs.

Jasmine Ramaradjou, Director of HTRN Information Systems/Information

Technology, OSU Department of Pathology; OSU Psychiatry, LLC; OSU Police

Division; and State of Ohio Personnel Review Board. The complaint does not state

whether the individual defendants are sued individually and/or in their official

capacity.

The following allegations are taken from Plaintiff’s complaint, which is

extremely lengthy.2

 Plaintiff Sara E. Siegler (“Siegler”) was employed by Defendant

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 Plaintiff also has other litigation pending in this court concerning the

matters at issue and naming several of the same defendants. See Siegler v. The

Ohio State University et al., Southern District of Ohio Case No. 2:10-cv-172.

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The Ohio State University (“OSU”) in its Department of Pathology as a student

employee from May 19, 2007 until July 31, 2007, and from July 31, 2007 until

February 25, 2009 as a full-time clinical research data coordinator.3

 While she was

a student, Siegler reported to defendant Daniel C. Rohrer. He later recruited her

from the student position to become a full-time Clinical Research Data Coordinator.

In that position, Siegler reported to Rohrer, defendant Laurie Ann Johnson, and Dr.

Scott D. Jewell. Complaint, PAGEID ## 112-13. She graduated from OSU in 2007

with a degree in microbiology. Siegler was employed at OSU’s Polaris Innovation

Centre (“PIC”), performing work generally relating to the handling of clinical trial

patient tissue slides.

In 2008, Siegler questioned some slides and five were sent to defendant Dr.

Frankel. Id., PAGEID ## 113-14. In April 2008, Rohrer gave Siegler a written

reprimand for an email she sent to defendants Nelson and Rosborough, coworkers,

requesting that they not waste her time. The complaint alleges that they were

engaged in watching movies and talking on telephone calls, leaving Siegler to

answer the telephone. Id., PAGEID # 114. Siegler asked to meet with defendant

Laurie Ann Johnson of OSU’s Office of Human Resources. Id., PAGEID ## 114-15.

In April 2008, Siegler met 2-3 times with Rohrer and Johnson. Johnson suggested

that Rohrer and Siegler “rebuild trust, confidence and teamwork.” Id., PAGEID #

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115. 

In July 2008, Rohrer denied Siegler’s request to work from 7:00 a.m. to 3:00

p.m. PAGEID ## 129.

Also in July 2008, Siegler wrote a research proposal that dealt with

lymphoma tisue cores and tissue microarrays. She submitted the proposal to

defendant Dr. Scott Douglas Jewell. Siegler’s proposal “was plagiarized by Dr.

Ayers, and she presented Siegler’s research at a conference in South Africa in

September of 2010 . . . . (Siegler was not given any credit for authoring said

research).” Id., PAGEID # 116. 

Siegler emailed Johnson about design flaws in the CALGB RIMS data. Id.,

PAGEID ## 119-20. 

In October 2008, Siegler learned coworkers had expressed concerns about her

to defendant Johnson (OSU HR). Siegler told Rohrer she wanted to talk with

Johnson or defendant Katrina Muska Duff “about whatever was going on.” Id.,

PAGEID ## 120-21. 

In October 2008, Siegler received two reprimands, but the only “corrective

action” was Duff setting up a meeting for Siegler with University Faculty and Staff

Assistance to help her cope with workplace stress. Id., PAGEID # 121. 

Rohrer did not meet with Siegler in October 2008 to begin her employee

review process. “Siegler felt as though the reason she was not reviewed at that time

was because plans were already in the works to terminate Siegler or force her to

leave her job via resignation.” Id., PAGEID # 121. In late October 2008, Siegler

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Borelli is not named as a party in either the caption or the parties section of

the complaint.

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communicated with defendants Duff, Rohrer, Johnson, Gibson, and Dillingham, and

with Lisa Borelli.4 Id., PAGEID ## 121-22. In October 2008, Dr. Jewell lied to NCI,

a funding source, about CALGB RIMS. In November 2008, Siegler sent emails to

and telephoned researchers at Duke University about CALGB RIMS. Id., PAGEID

## 123-24.

On November 3, 2008, Siegler had her first formal meeting with defendant

Muska Duff of OSU HR. Duff told her that OSU would accept her resignation but

that the offer was open for only 24 hours. Id., PAGEID # 124. 

In early November 2008, Siegler met with defendants Gibson and

Dillingham. Before the meeting, Siegler had emailed Gibson enquiring about the

possibility that she might be transferred to a different position without her consent.

She was told that the Department could reassign her without her consent. Id.,

PAGEID # 125. 

On November 10, 2008, Siegler told Rohrer she was not comfortable sending

out weekly CALGB RIMS updates since the data was not being entered into RIMS.

Rohrer instructed her to continue sending the emails. Id. But in December 2008,

Rohrer told her that she no longer had to send out the weekly CALGM RIMS

updates. Id., PAGEID # 125.

Defendant coworkers King and Nelson “often treated Siegler in a

disrespectful manner that escalated to harassment.” Id., PAGEID # 126. On

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November 20, 2008, Duke University employee Shah asked Siegler if it was okay to

discuss the problems with CALGB RIMS specimen tracking with his supervisor.

Siegle told Shah and his supervisor Kimberly Johnson that she was a whistle

blower and she would continue until she was fired. Id., PAGEID # 127. 

On November 24, 2008, Siegler emailed Gibson and Borelli asking how she

would file for whistle-blower protection with OSU HR. On December 1, Gibson

responded, copying Borelli and Dillingham, Id. Gibson told Siegler the matter

should be reported to the Office of Research. In early December, Siegler faxed

Gibson and Dillingham a whistle-blower complaint against Rohrer, Johnson, and

Dr. Jewell. On December 15, Siegler forwarded her whistle-blower narrative to Dr.

Gutman, who instructed her to keep working with OSU HR regarding any issues.

Shortly thereafter, Siegler made a whistle blower complaint against Dillingham,

Duff and Gibson. PAGEID # 128.

In December 2008, Siegler met with ADA coordinator Scott Lissner. She

asked that her ADD/ADHD disability be accommodated. Coworkers were “often

very noisy and disruptive to Siegler.” PAGEID # 129. 

On December 19, 2008, Rohrer and Johnson placed Siegler on paid

administrative leave. Id. Siegler believes that before she was placed on

administrative leave Dr. Barsky was supposed to sign off on the leave, but he did

not. PAGEID # 132. 

At some time before she was placed on administrative leave, Siegler’s privacy

was violated when she overheard Ms. Simendinger describing her surgical history

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during a telephone call. Siegler told Borelli and sent a letter to OSU’s privacy office. 

PAGEID ## 129-30. After she was placed on administrative leave, Dr. Jewell’s

daughter Rachel Allyson Jewell was hired at CALGM PCO in violation of OSU’s

anti-nepotism policy. PAGEID # 131. On December 24, Berland emailed Siegler

that the whistle-blower complaint had been transferred to her from Gibson. On

January 12, 2009, Siegler updated her whistle-blower narrative and emailed it to

Berland. PAGEID # 133. On February 3, On January 19, Siegler emailed Peter

Geier, of the OSU College of Medicine, requesting a meeting to discuss her whistleblower concerns. No meeting occurred. Siegler emailed the narrative to Olga

Esquivel-Gonzalez, an OSU HR Organization and Human Resources Manager.

PAGEID # 134.

At some point in December 2008, Siegler emailed defendant Gee general

information regarding her whistle-blower investigation. PAGEID # 133.

In February 2009, Siegler emailed Berland and Esquivel-Gonzalez

complaining that she did not receive a 2008 year-end bonus. PAGEID # 136.

Siegler sent a number of emails to Michelle Geiman, an Organization and

Human Resources Consultant, OSU HR, about her investigation. PAGEID # 137.

She emailed a revised version of her whistle-blower narrative to Berland and

Equivel-Gonzalez. PAGEID # 138.

During a February 25, 2009 telephone conference call, Siegler’s employment

was terminated. Equivel-Gonzalez read the results of Berland’s whistle-blower

investigation. Geiman read the results of her investigation. Rohrer read the

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termination letter. PAGEID # 139. Esquivel-Gonzalez instructed Siegler to provide

her rebuttal to the findings to Kimberly C. Shumate, an attorney assigned by the

Office of Legal Affairs. PAGEID # 140. 

Siegler appealed her termination to the State of Ohio Board of Personnel

Review. Although her appeal was denied, no final order was attached to the

decision. No hearing was held. PAGEID # 142. 

Plaintiff Siegler also alleges that, in July 2008, she produced a research

proposal concerning lymphoma tissue cores and tissue microarrays, about which

she conferred with one of the researchers at PIC, Dr. Jewell. However, in

September 2010, another researcher, Dr. Ayers, presented Siegler’s research at a

conference as her own. OSU has maintained that it has ownership of this research

as intellectual property developed by the use of federal funds, but Plaintiff alleges

that she produced the research proposal on her own time.

The complaint contains eleven causes of action. Each will be addressed

separately below. Before doing so, it is important to note that some 26 defendants

are named in a lengthy complaint that spans events over a period of about three

years. The individual defendants had diverse jobs and relationships to Plaintiff

Siegler’s employment. Each defendant is entitled to fair notice of the claim(s)

brought against them. Rule 8(a), Fed. R. Civ. P.; Bell Atlantic Corp. v. Twombly,

127 S.Ct. 1955, 1964 (2007). 

Although Rule 8(a)(2) requires only “a short and plain statement of the claim

showing that the pleader is entitled to relief,” it is not true that notice pleading

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means that a complaint need plead no facts. The form complaints appended to the

Federal Rules of Civil Procedure all include basic facts, such as the date the

actionable event(s) took place and a brief description of them. E.g., Forms 9-14 and

17. Here, as to many defendants, the complaint gives them no notice of the claims

against them and the grounds on which they rest.

Construing the complaint leniently in favor of Plaintiff Siegler, who is not a

lawyer and is representing herself, the defendants who have not received fair notice

of the claim(s) asserted against them are E. Gordon Gee, Dr. Stanford Barsky,

Larry Marvin Lewellen, Michelle Geiman, Stephanie Dawn Berland, Kimberly C.

Shumate, Katharine Hanby Dillingham, Donald Boyd Gibson, Dr. Amy Gewirtz, 

Dr. Todd Gerard Guttman, Dr. Wendy L. Frankel, Amy Elise Augustine, Laura

Kathleen Melton, Kelly M. Rosborough, Jasmine Ramaradjou, and OSU Psychiatry,

LLC.

Gee is the President of The Ohio State University. The complaint does not

contain any other allegations about him. Barsky was chair of the OSU Pathology

Department. The only other allegation about him in the complaint was that he was

supposed to sign off on Rohrer’s decision to place Siegler on paid administrative

leave, but he did not. PAGEID # 132. That allegation does not support any claim

against Barsky. There is no allegation in the complaint that Barsky participated in

the decision to terminate Siegler’s employment or engaged in any other actionable

conduct.

Lewellen was an OSU Vice President for Human Resources at the time of the

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events alleged in the complaint. The complaint does not allege that he engaged in

any actionable conduct. Donald Boyd Gibson was a labor specialist at OSU HR, and

Katharine Hanby Dillingham was a human resources director for the OSU College

of Medicine. The complaint alleges that in November 2008, Siegler met with

Gibson. On November 24, 2008, Siegler asked Gibson how to fill out a whistleblower complaint. He told her how. In early December 2008, Siegler forwarded the

whistle-blower complaint to Gibson and Dillingham. PAGEID ## 125 and 127-28.

Siegler did file a whistle-blower complaint against Gibson, Dillingham, and Duff,

PAGEID # 128, but there is no allegation that Gibson and Dillingham did anything

other than provide her with information about how to make a whistle-blower

complaint and accept the complaint she sent to him. Nothing in the complaint gives

Gibson or Dillingham fair notice of what they are alleged to have done to harm

Siegler.

Wendy L. Frankel was Principal Investigator for HTRN at OSU. The only

allegation about her in the complaint is that in 2008 Siegler questioned some slides

and five were sent to Dr. Frankel. Id., PAGEID ## 113-14. The complaint fails to

give Dr. Frankel fair notice of what she is alleged to have done to harm Siegler.

Amy Elise Augustine, Laura Kathleen Melton, Nicole M. King, Sarah Nelson,

and Kelly M. Rosborough are alleged to have been employed at the same facility as

Siegler. The complaint does not allege that they had any supervisory authority over

Siegler or that they engaged in any actionable conduct that harmed her. There are

no allegations specifically about Augustine or Melton. 

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As to King and Rosborough, the complaint alleges that in April 2008, Rohrer

gave Siegler a written reprimand for an email she sent to defendants Nelson and

Rosborough, requesting that they not waste her time. It further alleges that they

were engaged in watching movies and talking on telephone calls, leaving Siegler to

answer the telephone. Id., PAGEID # 114. Finally, the complaint alleges that King

and Nelson “often treated Siegler in a disrespectful manner that escalated to

harassment.” Id., PAGEID # 126. Assuming the truth of these allegations, none of

them state a claim for relief against a coworker. 

There are no allegations in the complaint against defendant OSU Psychiatry,

LLC.

Consequently, for the reasons set out above, it is RECOMMENDED that

defendants E. Gordon Gee, Dr. Stanford Barsky, Larry Marvin Lewellen, Michelle

Geiman, Stephanie Dawn Berland, Kimberly C. Shumate, Katharine Hanby

Dillingham, Donald Boyd Gibson, Dr. Amy Gewirtz, Dr. Todd Gerard Guttman, Dr.

Wendy L. Frankel, Amy Elise Augustine, Laura Kathleen Melton, Nicole M. King,

Sarah Nelson, Kelly M. Rosborough, Jasmine Ramaradjou, and OSU Psychiatry,

LLC be DISMISSED WITHOUT PREJUDICE because the complaint fails to give

them fair notice of the claim(s) asserted against them. 

The complaint alleges that beginning in 2008 Kathleen Simendinger was a

Special Assistant for Biorepository and Biospecimen Resource at the Polaris

Innovation Centre. The only other allegation regarding Simendinger is that on an

unspecified date she described Siegler’s surgical history during a telephone call to

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an unidentified person. Construing the complaint liberally, it may attempt to state

a claim that Simendinger violated HIPAA. It fails to state any other claim for relief

against her. As addressed below, however, Simendinger cannot be sued under

HIPAA. Consequently, it is RECOMMENDED that Simendinger be DISMISSED

WITH PREJUDICE for failure to state a claim upon which relief can be granted.

The complaint also names as defendants The Ohio State University, OSU

Police Division, The Ohio State University Office of Legal Affairs, OSU Medical

Center, OSU Department of Pathology, OSU Human Resources, and State of Ohio

Personnel Review Board. These defendants are arms of the state. The Eleventh

Amendment to the United States Constitution provides that states, and by

extension their agencies and employees acting within the scope of their

employment, cannot be sued in federal court without their consent. Such consent is

expressed as a waiver of sovereign immunity. Wilson-Jones v. Caviness, 107 F.3d

358, 358 (6th Cir. 1997). These seven defendants, as state agencies, are entitled to

Eleventh Amendment sovereign immunity on all claims. Will v. Michigan

Department of State Police, 491 U.S. 58, 65-66 (1989); Foulks v. Ohio Department

of Rehabilitation and Correction, 713 F.2d 1229, 1232 (6th Cir. 1983). This

protection extends to claims for money damages under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §12111 et seq . Dillon-Barber v. Regents of

Univ. of Michigan, 51 Fed.Appx. 946, 949 (6th Cir. 2002), citing Bd. of Trustees of

the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001). See also Gentry v.

Summit Behavioral Healthcare, 197 Fed.Appx. 434, 437 (6th Cir. 2006); Bevington

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 Plaintiff, in most of her claims, cites a profusion of various statutes,

including the Federal Tort Claims Act and sections of the Ohio Revised Code

pertaining to political subdivision tort liability. Unless otherwise noted, these

citations are spurious or irrelevant.

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v. Ohio University, 93 Fed.Appx. 748, 750 (6th Cir. 2004). Consequently, it is

RECOMMENDED that defendants The Ohio State University, OSU Police Division, 

The Ohio State University Office of Legal Affairs, OSU Medical Center, OSU

Department of Pathology, OSU Human Resources, and State of Ohio Personnel

Review Board be DISMISSED WITHOUT PREJUDICE because they are barred by

sovereign immunity.

Now the Magistrate Judge turns to the claims alleged against the remaining

defendants. Each claim pleaded in the complaint will be considered separately.

Intentional infliction of emotional distress: The complaint alleges that

“Defendants knowingly and intentionally acted to cause Siegler emotional distress.”

PAGEID # 145. The complaint does not identify any action by an individual

defendant that caused Plaintiff emotional distress. PAGEID ## 145-46.

Despite Plaintiff’s citations to federal and state statutes, this cause of action

is an Ohio common law tort.5 As noted above, suits against state agencies and

employees acting within the scope of their employment are considered to have been

brought against the state itself, and are therefore barred in this court by sovereign

immunity under the Eleventh Amendment. Bond v. Wilkinson, 889 F.2d 1086 (6th

Cir. 1989). This claim should accordingly be dismissed.

Negligent infliction of emotional distress: The complaint alleges:

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Those defendants who did not participate in the intentional infliction

of emotional distress upon Siegler via their actions and conduct were

negligent to the intentional infliction of emotional distress upon

Siegler by other Defendants. 

PAGEID # 147. The complaint does not identify these defendants or the defendants

who allegedly intentionally inflicted emotional distress. Further, it does not allege

any specific actions by any individual defendant that negligently inflicted distress

on Plaintiff. PAGEID ## 145-47. 

This cause of action, which is an Ohio common-law tort, is also barred by the

Eleventh Amendment. 

Retaliatory harassment: Again, the complaint fails to allege what individual

defendants did that constituted retaliatory harassment. PAGEID ## 149-52. The

complaint appears to allege that some coworkers, supervisors, and human resources

personnel took actions to make Plaintiff’s work more difficult or to terminate her

employment. However, many other defendants do not fall within those categories.

They were not coworkers or supervisors. They are not alleged to have taken actions

that made Plaintiff’s work more difficult or participated directly in the decision to

terminate her employment. The complaint also appears to allege that those

coworkers and supervisors who took actions against so in retaliation for, inter alia,

Plaintiff’s exercise of her First Amendment rights by reporting wrongdoing at her

place of employment. She has, on the face of her complaint, stated a claim under 42

U.S.C. §1983 for First Amendment retaliation against Defendants Daniel C. Rohrer,

Laurie Ann Johnson, Katrina Muska Duff, and Olga Esquivel-Gonzalez.

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Civil rights violations: PAGEID # 152-55. This cause of action states

generally that the actions of the defendants were violative of her constitutional

rights because they caused her injury. It does not appear to set forth any

independent basis for relief. Accordingly, it is repetitive of Plaintiff’s other claims,

not an independent claim itself.

Invasion of privacy: Complaint, PAGEID # 155-57. No individual defendants

are identified as committing this tort. From the general allegations in the

complaint, it would appear that Plaintiff may be attempting to allege a HIPAA

violation against Defendant Simendinger, an employee at the Polaris Innovation

Centre. It may also be alleging an invasion of privacy because defendant Geiman

was present when Rohrer read the termination letter. However, Congress did not,

in creating HIPAA, provide for any private right of action to enforce it. 42 U.S.C.

§1320d-5. “HIPAA does not provide a private cause of action for improper

disclosures of medical information, but rather provides civil and criminal penalties

which must be enforced by the Department of Health and Human Services.” Wood

v. Byer, 2006 WL 3304053 at *9 (N.D. Ohio August 9, 2006). See also Doe v. Board

of Trustees of Univ. of Illinois, 429 F.Supp.2d 930, 944 (N.D. Ill. 2006). Plaintiff

cannot therefore bring a claim under HIPAA against Simendinger. Furthermore,

any claim against Geiman under the Ohio common-law tort of invasion of privacy

would be barred by the Eleventh Amendment. 

Plaintiff cites to various other statutory bases for this claim such as the

Computer Fraud and Abuse Act and the Right to Financial Privacy Act, but these

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do not appear applicable to the allegations Plaintiff has made. 

False light invasion of privacy: Complaint, PAGEID # 157-59. The complaint

appears to attempt to plead “false light” invasion of privacy/slander claims. Again,

the complaint fails to allege actionable conduct by a specific defendant. Defendants

are left to conjecture whether a “false light”/slander claim is brought against them

and, if so, the nature of their actionable conduct. 

Civil conspiracy: Complaint, PAGEID # 159-61. Again, the complaint fails to

allege who conspired with whom to do what. The complaint fails to give defendants

fair notice of the claim(s) asserted against them.

Defamation, slander, and libel: Complaint, PAGEID # 161-63. These causes

of action, which are Ohio common-law torts, are also barred by the Eleventh

Amendment.

Employment discrimination: Complaint, PAGEID # 163-66. This claim pleads

violations of Ohio Revised Code § 4112.02 and the ADA. It does not plead claims

under 42 U.S.C. § 1918 or 1983 or 42 U.S.C. § 2000e-5(f). Once again, the complaint

does not identify any individual defendant as having violated either Ohio Revised

Code § 4112.02 or the ADA. Nor does it allege what any individual defendant did to

discriminate against Plaintiff in her employment. 

The only mention of a disability in the complaint is the allegation that in

December 2008 Siegler met with ADA coordinator Scott Lissner and asked that her

ADD/ADHD disability be accommodated. PAGEID # 129. There are no allegations

that any defendant took any action to discriminate against Plaintiff in her

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employment because of a disability. Under the ADA, only the employer, and not

supervisors, may be liable for violating the Act. Bukta v. J. C. Penney Co., Inc., 359

F.Supp.2d 649, 670 (N.D. Ohio 2004), citing Wathen v. General Elec. Co., 115 F.3d

400, 405 (6th Cir. 1997). However, as addressed above, as The Ohio State

University is a state agency, it cannot be sued for monetary damages under the

Americans with Disabilities Act. Dillon-Barber, supra. Consequently, Plaintiff’s

ADA claims are barred as a matter of law.

In addition, for the reasons set out above, the alleged employment

discrimination claim for violation of Ohio Revised Code § 4112.02 is barred by the

Eleventh Amendment.

Plagiarism and/or taking of real property: Complaint, PAGEID # 166-68.

Once again, the complaint fails to allege which individual defendants plagiarized

and took her property. The complaint alleges that the uncompensated taking of her

research proposal was violative of her Fifth Amendment rights. The only claim of

plagiarism in the general allegations is against Defendant Ayers; Plaintiff alleges

that she presented her research proposal to, and discussed it with, Defendant

Jewell, but does not allege that he took it or participated in taking it. Thus, the

complaint states on its face a claim under 42 U.S.C. §1983 for plagiarism/taking of

property against Defendant Ayers alone.

Witness tampering and/or witness intimidation: Complaint, PAGEID # 168-

70. The Court cannot find a cognizable basis for this allegation in the complaint,

and the terms used in the complaint are generally applied to criminal, not civil,

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wrongdoing. To the extent that this is related to the other claims she has

articulated, it is part of her claim under 42 U.S.C. §1983.

Accordingly, I RECOMMEND that Plaintiff’s Complaint be DISMISSED

WITH PREJUDICE, except with respect to claims arising under the Americans

with Disabilities Act as addressed below, against Defendants Gee, Barsky,

Lewellen, Geiman, Berland, Shumate, Dillingham, Gibson, Gewirtz, Guttman,

Frankel, Augustine, Melton, King, Nelson, Rosborough, Ramaradjou, OSU

Psychiatry, LLC, and Jewell pursuant to Fed. R. Civ. P. 8(a)(2) for failing to

articulate what claims cognizable at law are asserted against them.

I further RECOMMEND that Plaintiff’s Complaint be DISMISSED WITH

PREJUDICE with respect to all claims arising under the Americans with

Disabilities Act against all individual defendants, for failure to state a claim upon

which relief can be granted. 

I further RECOMMEND that Plaintiff’s Complaint be DISMISSED WITH

PREJUDICE with respect to all claims against Defendant Simendinger, for failure

to state a claim upon which relief can be granted.

I further RECOMMEND that Plaintiff’s Complaint be DISMISSED

WITHOUT PREJUDICE with respect to Defendants The Ohio State University,

OSU Police Division, The Ohio State University Office of Legal Affairs, OSU

Medical Center, OSU Department of Pathology, OSU Human Resources, and State

of Ohio Personnel Review Board, for lack of subject matter jurisdiction due to

sovereign immunity under the Eleventh Amendment. I likewise RECOMMEND

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that Plaintiff’s Complaint be DISMISSED WITHOUT PREJUDICE with respect to

all other defendants, to the extent they are not already otherwise dismissed above,

for Plaintiff’s Ohio common law claims for intentional infliction of emotional

distress, negligent infliction of emotional distress, invasion of privacy, false light

invasion of privacy, and defamation, slander, and libel, as well as Plaintiff’s Ohio

statutory claims for retaliatory harassment, civil rights violations, and employment

discrimination, for lack of subject matter jurisdiction due to sovereign immunity

under the Eleventh Amendment.

Finally, I RECOMMEND that Plaintiff’s Complaint be permitted to proceed

with respect to the following claims: (1) against Defendants Daniel C. Rohrer,

Laurie Ann Johnson, Katrina Muska Duff, and Olga Esquivel-Gonzalez, to the

extent that Plaintiff states a claim under 42 U.S.C. §1983 for retaliation for exercise

of constitutional rights guaranteed by the First Amendment; and (2) against

Defendant Leona B. Ayers, to the extent that Plaintiff states a claim under 42

U.S.C. §1983 for the uncompensated taking of intellectual property in violation of

the Fifth Amendment and/or Fourteenth Amendments.

It is FURTHER ORDERED that the United States Marshal serve by certified

mail upon all defendants a summons, a copy of the complaint, and a copy of this

Order. Defendants Rohrer, Johnson, Duff, Esquivel-Gonzalez, and Ayers, are

ORDERED to answer or otherwise respond to the complaint within forty-five (45)

days after being served with a copy of the complaint and summons. No defendant is

barred, by the Court’s identification herein of ascertainable or colorable claims,

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from moving pursuant to Fed. R. Civ. P. 12(b)(6). The remaining defendants are not

required to answer the complaint unless later ordered to do so by the Court.

If any party objects to this Report and Recommendation, that party may,

within fourteen (14) days, file and serve on all parties a motion for reconsideration

by the Court, specifically designating this Report and Recommendation, and the

party thereof in question, as well as the basis for objection thereto. 28 U.S.C.

§636(b)(1)(B); Rule 72(b), Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the

District Judge and waiver of the right to appeal the judgment of the District Court. 

Thomas v. Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller

v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Willis v.

Sullivan, 931 F.2d 390, 401 (6th Cir. 1991). 

s/Mark R. Abel 

United States Magistrate Judge

 

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