UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JEWELL EVETTE JONES, et al.,

Plaintiffs,

vs.

MONTGOMERY COUNTY 

DEPARTMENT OF JOB AND 

FAMILY SERVICES—CHILDREN 

SERVICES DIVISION, et al.,

Defendants.

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Case No. 3:18-cv-00037

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

Plaintiff Jewell Evette Jones is a former probationary employee of the 

Montgomery County, Ohio Department of Job and Family Services (DJFS). She brings 

this case pro se claiming that she and others endured a hostile and abusive work 

environment during her employment with DJFS. She asserts that Defendant Jane Hay, “a 

white woman,” unlawfully interfered with her and other black employees’ job 

performance by training them “to fail the probationary period ....” (Doc. #2, ¶s 12, 15). 

She further alleges that Defendant Hay “permeated the entire workplace at the Division 

[DJFS] with discriminatory intimidation, ridicule, and insult and so heavily polluted the 

environment with harassment, intimidation, racial remarks and discriminatory acts and 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

omission, as to destroy completely the emotional and psychological stability of the entire 

minority group [of] workers within that Division ....” Id. at ¶13. She also maintains that 

Hay attempted to coverup the hostile and abusive work environment and retaliated 

against her (Plaintiff) when she reported Hay’s discriminatory conduct. 

The case is before the Court upon many disputed Motions, the most potentially 

dispositive being the Montgomery County Defendants’ Motion to Dismiss under Fed. R. 

12(b)(6) (Doc. #12), Defendant Jane Hay’s Motion to Dismiss (Doc. #13), and Plaintiff’s 

Motion to Amend Complaint (Doc. # 20).

II. Plaintiff Jewell Evette Jones’s Complaint2

When assessing Plaintiff’s pro se Complaint under Fed. R. Civ. P. 12(b)(6), the 

Court accepts her allegations as true and liberally construes her Complaint in her favor. 

See Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Doing so discloses the 

following.

Plaintiff’s fifty-six page Complaint explains early on, “This case involves an 

unlawful agreement between the defendants within the ... [DJFS], (Plaintiff’s former 

place of employment), to conceal and cover up a hostile work environment with that 

department caused by Defendant Jane Hay, using her position as President of the (PGO

[Professional Guild of Ohio]) Union and her knowledge of Ohio’s Statewide Child 

Welfare Database System (SACWIS), to harass, intimidate, curse, belittle and make 

racist statements to the employees beneath her, subjecting Plaintiff and her fellow 

 2 See Infra §IV(G) for an explanation of why Edward Levi Jones is not a party to this case.
3

employees to the deprivation of rights, privileges and immunities secured by the 

Constitution of the United States.” (Doc. #2, PageID #94).

DJFS hired Plaintiff on May 16, 2016 as a probationary employee in the position 

of Secretary 1 within the Children Services Division of DJFS. (Doc. #2, ¶27). On her 

first day of employment, “she was pulled to the side by a black MCCS [apparently, 

Montgomery County Children Services] supervisor (Tarina Mason), who warned her to 

watch out for Jane Hay.... [She] was a ‘backstabber’ and ... was rude and had a habit of 

talking crazy to her coworkers.” Id. at ¶ 29. Defendant Deansai Myers, Human 

Resources Coordinator, also spoke with Plaintiff on her first day of work. Plaintiff 

alleges, “[Myers] came by the Plaintiff’s desk and told her to beware of Jane Hay and 

that if Plaintiff had any problems with Jane Hay, ... Plaintiff should let her know.” Id. at 

¶ 32 (emphasis omitted).

Two days later, Plaintiff met Defendant Sandra Mundy, a supervisor of Mandated 

Services. Defendant Mundy informed Plaintiff that Jane Hay would be Plaintiff’s trainer 

and that Hay would be training Plaintiff to acquire the skills required for Court Review 

Specialist, Rank 1. Defendant Mundy also told Plaintiff that she “was hired because 

[she] is ex-military, a veteran, who should be able to handle Jane.” Id. at ¶s 34-35. 

Plaintiff alleges that Hay is a white woman, President of the Union (Professional 

Guild of Ohio), and a Court Review Specialist for Montgomery County DJFS. 

On Plaintiff’s first day of job training, Defendant Hay explained how to get along 

and work together with her (Defendant Hay). “At that time, Defendant ... Hay informed 

Plaintiff to, stay away from the black girls in the building because they (the black girls) 
4

did not like Defendant Hay and she did not want Plaintiff to get involved with them and 

did not want them in her area.” Id. at ¶s 40-41 (italics in original). Hay also instructed 

Plaintiff not to talk with Diane Williams, a black employee who did not like Hay. Id. at 

¶42.

Plaintiff’s work environment became progressively worse during the close of 

2017. Id. at ¶49. “[She] noticed that when she returned from lunch, Defendant Hay 

would run to Plaintiff’s cubicle and sniff Plaintiff, and make Plaintiff take off her 

sunglasses.” Id. On one occasion, Hay asked Plaintiff why her eyes were red. When 

Plaintiff told Hay that she had allergies, Hay “began to tell Plaintiff what would happen if 

a person were presumed to be high at work and did so in a way that Plaintiff perceived it 

to be a threat.” Id.

During Plaintiff’s training, if Plaintiff asked Hay questions, Hay would loudly 

shout belittling remarks at her. Id. at ¶50. Hay also instructed Plaintiff not to help people 

who walked up to the desk asking for help because those employees should instead send 

an email asking for help. But, Defendant Hay allowed white co-employees to walk up to 

the desk and Hay would help them. Plaintiff began to notice a pattern that “when [black]

co-workers ... would ask ... for assistance[,] Defendant Hay would run them off and tell 

them that the Plaintiff was in training and they needed to send her (Jane Hay) an email to 

get help.” Id. at ¶51.

These circumstances caused Plaintiff severe anxiety. Plaintiff knew “of Defendant 

Hay’s power in the department and division....” Id. at ¶52. Plaintiff felt dependent on 

Hay, and she was intimidated when Hay asked her to do something. Id. Plaintiff began 
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suffering from “skin [...] peeling from her hands and a strange red rash.” Id. at ¶ 53. She 

reported these problems to Defendant Mundy and showed Defendant Mundy her alleged 

stress-related-physical symptoms. Id. 

A reprieve from Plaintiff’s training and work with Hay came in July 2017, when 

Hay went on medical leave. During Hay’s absence, Plaintiff initially thought that only 

Hay was capable of handling certain matters or issues specific to their operating system, 

SACWIS. Id. at PID 20-21, ¶¶ 56-57. At some point, however, while Hay was on 

medical leave Plaintiff realized that she knew enough to make required entries into the 

SACWIS system without causing a systemic error. Id. at ¶58. Plaintiff also learned that 

most of the alleged errors in Plaintiff’s work that Hay had reported “were typographical 

errors that had nothing to do with a systematic shutdown, or an error that affected the 

efficiency of the office or division but had not effect on her knowledge of the SACWIS 

system for which Plaintiff was really hired.” Id. at ¶59.

Plaintiff asserts that her own work performance improved while Hay was absent 

on medical leave. Id. at ¶60. Plaintiff’s typographical errors significantly decreased in 

Hay’s absence. Plaintiff informed Defendant Mundy that the reason her typographic 

errors had been so high “was because of the distractions and events caused by Defendant 

Hay during the work-week in the small cubicles where Plaintiff worked. Plaintiff’s rash 

began to clear up during that time..., where Plaintiff was able to work without being 

under the extreme stress when in the presence of Defendant Hay.” Id. at ¶60.

Additionally, before Hay went on medical leave, she failed to tell Plaintiff how to 

log into, and add data to, a system designed to track Plaintiff’s work completion. When 
6

Defendant Jewell, Assistant Director of DJFS, looked at the system to check on 

Plaintiff’s progress, there was nothing to show how much work Plaintiff had done. This 

prevented Defendant Jewell from tracking Plaintiff’s progress and work performance. Id. 

at ¶56.

While Hays was on medical leave, “the whole work-place atmosphere changed 

and it seemed more relaxed and cheerful....” Id. at ¶58.

Upon Defendant Hay’s return to work, “Plaintiff’s probationary period was 

extended and under Defendant Hay and Plaintiff’s rash returned immediately.” Id. at 

¶63. This again caused Plaintiff extreme emotional distress. “The distress became so 

extreme that Plaintiff sought treatment from the Veteran’s Medical Staff to deal with the 

stress [she] was under as a result of the work environment, while [she] was attempting to 

make it through her probationary period and would no longer have to be under Defendant

Hay and no longer considered a trainee, but a full-time employee of the Department, 

where Plaintiff planned to retire.” Id. at ¶62.

After Hay returned to work, she reviewed the work three employees had done by 

making entries into the SACWIS system during her absence. Hay made “small, subtle 

marks” on white employee Jane Kidwell’s paperwork. But, when Hay reviewed 

Plaintiff’s work, “Hay made big bright marks on the paper with a hot pink marker.” Id. at 

¶66. Hay made even bigger marks on Clarissa Gresham’s work, and she told Defendant 

Mundy that she would need to correct all of Gresham’s work. Gresham was a black 

employee. Id.
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As far as Hay’s review of Plaintiff’s errors with SACWIS, Plaintiff realized that it 

was Hay who caused—and in some instances created—the errors. Id. at ¶72. Hays did 

not train Plaintiff “how entries on the different documents were to be made and why.” Id. 

at ¶73. She instead would give Plaintiff conflicting instructions about how make entries 

on certain documents. When Plaintiff followed Hay’s instructions to input information 

from complaints and motions into SACWIS, “Defendant would tell Plaintiff to make the 

entry one way, then mark it wrong on the document when Plaintiff would give it back to 

Defendant Hay for review. Jane Hay would then give the document to Mundy [again, 

she was a supervisor of Mandated Services] who reviewed it and returned it to ... 

Plaintiff with a note that said either Mundy was disappointed in all the errors or that ... 

Plaintiff was improving.” Id. at ¶77. The cycle would then continue. Plaintiff would reenter information as Hay instructed, but Hay would again mark it wrong and give it to 

Mundy, who returned it to Plaintiff to correct.

Plaintiff’s Complaint further details efforts by Hay to train her incorrectly about 

entering information into SACWIS. “When Plaintiff would ask a question to Defendant 

Hay..., Defendant Hay would yell ‘I told you three times how to do that’ but never was 

Plaintiff told why it must be done that way.” Id. at ¶87. Plaintiff characterizes Hay’s 

conduct as “obnoxious and loud.” Id. at ¶88.

In November 2016, Plaintiff told Defendant Mundy that she was teaching herself 

the SACWIS system and that she had started creating an instruction manual on how to 

make entries into the SACWIS system “because Defendant Hay was not giving her 

pertinent information on how entries were supposed to be made into the system.” Id. at 
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¶89. “Defendant Mundy then began to express disdain towards Plaintiff saying that [she] 

‘was paying too much attention to what Jane was doing, instead of concentrating on how 

to master the work that needed to be done.” Id. at ¶91.

In December 2016, Defendant Hay told Mundy that Plaintiff was making too 

many errors “and that she did not think that Plaintiff could grasp the work.” Id. at ¶92. 

Around this same time, Plaintiff told Mundy that Hay was sabotaging her work by 

changing it. When Plaintiff gave Mundy documents that exposed Hay’s sabotage, 

Mundy lacked the requisite knowledge of the SACWIS system to understand what 

Plaintiff was trying to show her. Id. at ¶97. Defendant Hay told Mundy that she had not 

changed Plaintiff’s work. Mundy eventually accepted Defendant Hay’s “excuses and 

explanations and told Plaintiff that she was worrying too much about Defendant Hay and 

not concentrating on her work.” Id. at ¶102.

Defendant Hay would not allow Plaintiff to make it through her probationary 

period. “As far as Defendant Hay was concerned, there was only enough work for two 

individuals in that division in the position of Court Review Specialist, Rank 1, and 

Plaintiff would not be one of those individuals.” Id. at ¶114. “In January 2017, Plaintiff 

discovered that Defendant Hay had [done] the same exact thing to two other black 

females ... training on SACWIS system. One quit and the other was terminated....” Id. 

at ¶115.

At one point, “Defendant Hay said that because she was not invited to ... the 

social functions that the black women employees would have throughout the year, that 

she (Defendant Hay) would not do anything to help any of (those heifers).” Id. at ¶100.
9

Plaintiff went to various people at DJFS for assistance with the problems between 

herself and Defendant Hay. The people with whom Plaintiff spoke, including Defendant 

Mundy, did not help her.

Plaintiff’s last day of employment was in the third week of January 2017. She 

met with various people in Human Resources. Before she was allowed to meet with 

Debra Robinson, a Union representative, Plaintiff was escorted back to her work area and 

told to gather her belongings. She was not allowed to keep the work she had developed 

to help her make entries into SACWIS. She was placed on administrative leave with pay, 

effective immediately. Id. at ¶¶ 136-142.

Plaintiff’s Complaint advances three causes of action: (1) intentional employment 

discrimination in violation of 42 U.S.C. § 1981a; (2) violations of 42 U.S.C. § 1983, 

including conspiracy to retaliate against Plaintiff for reporting Hay’s conduct and the 

“termination of [her] employment to conceal and cover up the racial undertones and 

abuses that were caused by the President of the Union, Jane Hay....” (Doc. #2, ¶154); and 

(3) intentional infliction of emotional distress. She seeks, in part, compensatory 

damages, and two million dollars in punitive damages against DJFA.

Plaintiff also asserts in her first cause of action, “defendants sued in their 

individual capacities are liable under Section 1981 ....” Id. at ¶ 152. She asserts in her 

second cause of action, defendants sued in their official capacities are liable under 

Section 1983 ....” Id. at ¶156.

III. Rule 12(b)(6) Motions

A complaint is subject to dismissal under Rule (12)(b)(6) when it “lacks ‘sufficient 
10

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

Brent v. Wayne Cnty. Dep’t of Human Services, 901 F.3d 656, 675-76 (6th Cir. 2018)

(quoting Marie v. Am. Red Cross, 771 F.3d 344, 361 (6th Cir. 2014) (other citation 

omitted)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“[C]onclusory legal allegations...,” Lutz v. Chesapeake Appalachia, L.L.C., 717 

F.3d 459, 464 (6th Cir. 2013), are insufficient, and “‘a formulaic recitation of the 

elements of a cause of action will not do.’” Id. at 555 (citation omitted). “Nor does a 

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Id. at 557 (citation omitted). A complaint suffices when its factual 

allegations nudge the legal “‘claims across the line from conceivable to plausible ....’” 

Lutz, 717 F.3d at 464 (citations omitted).

“[Pro se] Complaints are liberally construed and are held to less stringent 

standards than the formal pleadings prepared by attorneys.” Bridge v. Ocwen Federal 

Bank, FSB, 681 F.3d 355, 358 (6th Cir. 2012) (citation omitted).

IV. Discussion

A. Procedural Posture

Plaintiff has not filed a Memorandum in Opposition to the pending 12(b)(6) 

Motions. This, however, is not presently fatal to her Complaint because she is 

proceeding pro se and the case currently presents unusual circumstances.
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Although Plaintiff has not filed a Memorandum in Opposition, her Response to 

Defendants’ Motion to Stay Discovery argues, in part, that she “states a claim” under 42 

U.S.C. § 1983. (Doc. #18, PageID #394). She also contends in her Response:

Plaintiff was, at the least, denied due process during the termination of her 

career and, in fact, disabled because of the hostile work environment she was 

subjected to by the defendants and the subsequent retaliation against her for 

reporting the causes of the hostile work environment to her immediate 

supervisors. The facts alleged state a clear conspiracy—an agreement to do 

a lawful act in and unlawful manner—and as such are enough to survive a 

challenge in 42 U.S.C. section 1983 claim.

Id. at 374.

Plaintiff acknowledges in her Motion to Amend Pleadings and Legal Claims that 

“Defendant is [sic] correct” when their counsel informed her that her research does not 

“address the deficiencies raised in Plaintiff’s Complaint by the Defendants.” (Doc. #20, 

PageID #427).

“[W]hen the pleadings are filed by pro se plaintiffs, the court may consider 

additional, supporting documents which either serve to elaborate on a complaint or

amend the initial filing.” Tolliver v. Noble, __F. App’x__, 2018 WL 4944991, at *8 (6th 

Cir. 2018) (citing, and parenthetically explaining, Brown v. Matauszak, 415 F. App’x 

608, 613-14 (6th Cir. 2011) (determining that although the plaintiff’s response to the 

defendant’s motion to dismiss did not provide sufficient factual support, the district court 

should have granted plaintiff leave to amend based on the allegations contained in his 

motion for relief from judgment in the plaintiff’s separate state-court case)) (other 

citations omitted).

Because Plaintiff’s Response elaborates somewhat on the claims she raises in her 
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Complaint, and because leave to amend a pleading is freely given as justice so requires, 

see Fed. R. Civ. P. 15(a)(2), it is presently appropriate to consider her Response and 

Motion to Amend Pleadings when ruling on Defendants’ pending Rule 12(b)(6) Motions. 

See id. (and cases cited therein).

B. Defendant DJFS

Defendants contend that the Montgomery County DJFS should be dismissed as a 

party in this case because it is sui juris. They are correct.

The Montgomery County DJFS is a branch of the Montgomery County 

government and lacks the capacity to be sued (i.e., is not sui juris). See Arsan v. Keller,

3:17cv121, 2018 WL 635894, at *4 (S.D. Ohio, 2018), report and recommendation 

adopted, 2018 WL 3933706 (S.D. Ohio, 2018) (Rice, D.J.); see also Adams v. 

Montgomery Cnty. Children’s Servs., No 3:15cv127, 2015 WL 4638872, at *3 (S.D. 

Ohio Aug. 4, 2015) report and recommendation adopted, 2016 WL 224096 (S.D. Ohio 

Jan. 19, 2016) (Rose, D.J.) (citing Wilson v. Trumbull Cnty. Dep't of Job & Family 

Servs., No. 4:12cv2163, 2013 WL 5820276, at *3 (N.D. Ohio Oct. 29, 2013) (and cases 

cited therein).3

Accordingly, dismissal of Montgomery County DJFS as a party in this case is

warranted.

 3 “Although state [Ohio] law prescribes a range of duties to the county departments, “‘[t]he powers and duties of a 

county department of job and family services are, and shall be exercised and performed, under the control and 

direction of the board of county commissioners.” Lowe v. Hamilton County Dept. of Job & Family Services, 610 

F.3d 321, 329 (6th Cir. 2010) (quoting, in part, Ohio Rev. Code § 329.04(B)).
13

C. 42 U.S.C. § 1981a

Plaintiff asserts in her 1st cause of action that Defendants discriminated against her 

by acting “in concerted participation in an agreement to conceal and cover up a hostile 

work environment ... caused by Defendant Jane Hay, who has and continues to utilize 

her position as President of the [Professional Guild of Ohio] Union and her knowledge of 

Ohio’s ... SACWIS, to have free reign to harass, intimidate, curse, belittle and make 

racist statements to the employees beneath her, subjecting Plaintiff and fellow employees 

...” in violation of the Constitution and laws of the United States.” (Doc. #2, ¶150).

Defendants contend that Plaintiff’s § 1981 claim fails as a matter of law because 

this statute does not create a substantive right or cause of action.

“‘[T]he express cause of action for damages created by § 1983 constitutes the 

exclusive federal remedy for violation of the rights guaranteed in § 1981 by state 

governmental units.’” McCormick v. Miami University, 693 F.3d 654, 660 (6th Cir. 

2012) (quoting Arendale v. City of Memphis, 519 F.3d 587, 598–99 (6th Cir. 2008)); see

Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (quoting parenthetically Pittman v. 

Oregon Employment Dep't, 509 F.3d 1065, 1074 (9th Cir. 2007) (“[W]e hold that § 1981 

does not contain a cause of action against states.”)) (other citations omitted). 

Additionally, “§ 1981a does not afford an independent ground for relief but is a statutory 

provision for additional recovery of damages in Title VII cases.” Powers v. Pinkerton, 

Inc., 28 F.Supp.2d 463, 472 (N.D. Ohio 1997). The potential for additional damages 

under § 1981a in Title VII cases does not presently help Plaintiff because she has not 

asserted a Title VII claim.
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Accordingly, dismissal of Plaintiff’s 1st cause is warranted.

D. 42 U.S.C. § 1983

Defendants contend that Plaintiff’s § 1983 claim fails to meet the minimum 

pleading requirements of Iqbal and Twombly because her Complaint does not identify the 

any constitutional provision that Defendants violated. Defendants rely on several cases 

support the proposition that § 1983 claims are “only cognizable when based on the 

violation of a constitutional right.” (Doc. #12, PageID #204-05).

Defendants’ three supporting cases, however, speak to one element of § 1983 

claim—violation of a constitutional right—rather than to whether a pro se plaintiff must 

assert the violation of a specific constitutional right to avoid Rule 12(b)(6) dismissal. 

None of Defendants’ cases discuss this issue under Rule 12(b)(6) and the standards 

established in Twomby and Iqbal. See Day v. Wayne County Bd. of Auditors, 749 F.2d 

1199, 1202 (6th Cir. 1984) (pre-dating Twombly and Iqbal); Siegner v. Township of 

Salem, 654 F. App’x 223, 233 (6th Cir. 2016) (summary-judgment case); Toth v. City of 

Toledo, 480 F. App’x 827 (6th Cir. 2012) (summary-judgment case). Defendants’ 

reasoning is likewise unconvincing. They start from the general premise that § 1983 

claims must be based on a violation of a specific constitutional right. This is certainly a 

correct statement of law in the context of what a § 1983 plaintiff must ultimately prove. 

See Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (“To prove a claim under 

42 U.S.C. § 1983, a plaintiff must establish: (1) that he was deprived of a right secured by 

the Constitution or laws of the United States ....” (footnoted omitted). This alone, 

however, says nothing informative about measuring the plausibility of a § 1983 claim or 
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about whether a pro se plaintiff will incur a Rule 12(b)(6) dismissal when he or she fails

to reference a violation of a specific constitutional provision in their complaints. 

Defendants, moreover, presently offer no meaningful analysis of this Rule 12(b)(6) issue. 

And it seems a dubious proposition given that “[f]ederal pleading rules call for a short 

and plain statement that the pleader is entitled to relief, Fed. R. Civ. P. 8(a)(2); they do 

not countenance dismissal of a complaint for imperfect statement of legal theory 

supporting the claim asserted.” Johnson v. City of Shelby, Miss.,— U.S. —, 135 S.Ct.

346, 190 L.Ed.2d 309 (2014). 

Defendants next contend that Plaintiff’s claims against the individual Defendants 

(employees of DJFS) in their official capacity are claims against Montgomery County.

This is correct.

“Official-capacity suits ... ‘generally represent only another way of pleading an 

action against an entity of which an officer is an agent.’ Courts regularly dismiss as 

redundant claims against agents in their official capacities when the principal entity is 

also named as a defendant in the suit.” Carter v. Delaware County Bd. of Com'rs, 2009 

WL 544907, at *14 (S.D. Ohio 2009) (quoting, in part, Kentucky v. Graham, 473 U.S. 

159, 165, 105 S.Ct. 3099 (1985) (other citation omitted). As seen above, however, DJFS 

is sui juris. Plaintiff has not named Montgomery County as a Defendant. Yet, liberally 

construing in her favor her official-capacity claims against at least some of the 

Defendants—for example, Defendant Tom Kelly, Director of DJFS; Defendant Hay, 

Plaintiff’s job trainer (and perhaps co-worker); Defendant Myers, Human Resources 

Coordinator; and Defendant Mundy, a clerical supervisor—dismissal of these claims is 
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presently unwarranted for two reasons: First, it is premature to dismiss Plaintiff’s

official-capacity § 1983 claims against the individuals Defendants because Montgomery 

County is not named as a defendant in Plaintiff’s pro se Complaint. Cf. Pethtel v. 

Washington County Sheriff’s Office, 2:06cv799, 2007 WL 2359765, at *5 (S.D. Ohio

2007) (“Because Washington County has now been named as a defendant, the claims 

brought against the county defendants in their official capacities are redundant and will 

be dismissed.”). Second, the County Defendants recognize that Plaintiff’s officialcapacity § 1983 claims are “the equivalent of a claim against the local government entity 

and therefore Montgomery County.” (Doc. #12, PageID #206). This leads to 

Defendants’ next argument.

Defendants argue that Plaintiff’s claims against Montgomery County must be 

dismissed because she fails to identify an official policy that violated her constitutional 

rights.

Again, the reference points for analysis are Plaintiff’s pro se Complaint together 

with her Response to Defendants’ Motion to Stay and her Motion to Amend Pleadings, 

for the reasons explained previously. See supra, § IV(A). Construing these documents 

liberally in Plaintiff’s favor reveals that although she falls short of specifying the 

particular municipal policy or custom at issue, her Response attempts to advance, through 

a discussion of law, a § 1983 claim based on theories of supervisory-level policymaking 

authority and supervisory acquiescence in unconstitutional conduct. This, together with 

her allegations of a racially hostile work environment created by Defendant Hay, 

retaliation by Defendant Mundy, a denial of due process in her termination, and knowing
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acquiescence in unconstitutional conduct by at least some of the individual Defendants, 

Rule 12(b)(6) dismissal of Plaintiff’s official-capacity § 1983 claims is presently 

unwarranted. Additionally, because leave to amend a pleading is freely allowed a justice 

so requires, see Fed. R. Civ. P. 15(a)(2), Plaintiff should be given an opportunity to 

Amend her Complaint to address the deficiencies in her § 1983 claims that Defendants 

identify.

E. Intentional Infliction of Emotional Distress

Plaintiff alleges that the discriminatory and abusive work environment Defendants 

subjected her to cause her a nervous breakdown, caused her to be distracted from her job 

performance, caused her to be discouraged while on the job, kept her from advancing in 

her career. She asserts that because of these problems, the Veterans Administration has 

ruled that she is permanently disabled due to mental instability. (Doc. #2, PageID #142).

Defendants contend that Plaintiff has failed to raise a plausible claim of intentional 

infliction of emotional distress because mere insults, berating comments, petty 

oppressions, or other trivialities are not sufficient to establish such a claim under Ohio 

law.

One essential element of a claim in Ohio for intentional infliction of emotional 

distress is “where defendant’ s conduct is ‘extreme and outrageous’ in that it goes 

‘beyond all possible bounds of decency,’ is ‘atrocious,’ and is ‘utterly intolerable in a 

civilized community’; conduct that is merely malicious, aggravated, or intentional or that 

entails an intent that is tortious or criminal is insufficient to render it actionable.” Abbott 
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v. Crown Motor Co., Inc., 348 F.3d 537, 545 (6th Cir. 2003) (quoting, in part, Yeager v. 

Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666, 671 (1983)).

Accepting Plaintiff’s allegations as true and liberally construing her Complaint 

and Response in her favor, and in the absence of an Amended Complaint, a Rule 12(b)(6) 

dismissal of her claims of retaliation and race discrimination would be premature. Cf. 

Johnson v. Cox, 1997 WL 152636, at *4 (Ohio App. 4 Dist.,1997) (“sexual harassment

on the job is an intentional infliction of emotional distress.”).

F. Defendant Hay’s Motion to Dismiss

Defendant Hay’s Rule 12(b)(6) Motion seeks dismissal of Plaintiff’s three causes 

of action. The above analysis of Plaintiff’s first and third causes of action, under 42 

U.S.C. § 1981a and for intentional infliction of emotional distress (respectively), applies 

equally to Defendant Hay’s Rule 12(b)(6) Motion. Consequently, dismissal of Plaintiff’s 

§ 1981a claim against Defendant Hay is warranted under Rule 12(b)(6), and dismissal of 

Plaintiff’s claim of intentional infliction of emotional distress would be premature.

Defendant Hay contends that Plaintiff’s Complaint fails to state a § 1983 claim 

because it does not indicate that she acted under color of state law. Hay reasons that 

bargaining Union officials (like Hay) do not act under the color of state law. Hay also 

points out that she lacked the authority to terminate anyone’s employment at DJFS. 

Hay is correct that she was not a state actor and did not act under the color of state 

law when she engaged in conduct as a union official. See Harris v. Morris, No. 91-4010,

1993 WL 2303, at *2 (6th Cir. 1993) (“The Union and its officers were not acting under 

color of law, notwithstanding that they represented state employees.”). Yet, accepting 
19

Plaintiff’s allegations as true and liberally construing her Complaint in her favor, she 

raises allegations about Hay’s discriminatory conduct as her job trainer and Hay’s 

discriminatory use of her authority as Plaintiff’s job-performance evaluator during 

Plaintiff’s probationary period with DJFS. Because Defendant Hay engaged in such 

alleged acts as an employee of DJFS, if not in a supervisory role for DJFS, the Complaint 

plausibly alleges that Hay acted under the color of state law.

Accordingly, Defendant Hay’s Motion to Dismiss is well taken as to Plaintiff’s

first cause of action but not well taken as to her second and third causes of action.

G. Remaining Matters

Plaintiff’s Complaint includes a notation on the first page indicating that Edward 

Levi Jones is a Plaintiff. But, Mr. Jones is not described in the Complaint as a party to 

the case, and he did not sign the Complaint. Consequently, dismissal of Mr. Jones as a 

Plaintiff in this case is warranted.

Lastly, Defendants have filed several Motions seeking a stay of discovery pending 

a ruling on their Motions to Dismiss. In light of the recommendations set forth herein, 

Defendants’ Motions to Stay will be moot regardless of the outcome any objections to 

this Report and Recommendations and given the upcoming need for an Amended 

Scheduling Order in this case.

IT IS THEREFORE RECOMMENDED THAT:

1. Montgomery County Defendants’ Motion to Dismiss under Fed. R. 

12(b)(6) (Doc. #12) be GRANTED, in part, and Plaintiff’s claim under 42 

U.S.C. § 1981a be dismissed;
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2. Montgomery County Defendants’ Motion to Dismiss under Fed. R. 

12(b)(6) (Doc. #12) be DENIED in remaining part;

3. Defendant Hay’s Motion to Dismiss (Doc. #13) be GRANTED, in part, and 

Plaintiff’s claim against her under 42 U.S.C. § 1981a be dismissed;

4. Defendant Hay’s Motion to Dismiss (Doc. #13) be DENIED in remaining 

part;

5. Plaintiff’s Motion to Amend Complaint (Doc. # 20) be GRANTED, and 

Plaintiff be directed to file her First Amended Complaint within 20 days of 

a Decision addressing this Report and Recommendations;

6. Defendants’ Motions and Supplemental Motions to Stay Discovery (Doc. 

#s 16, 17, 21) be DENIED as moot; and

7. Defendants’ Motion for Scheduling Conference (Doc. #28) be GRANTED 

and a Scheduling Conference be set after a Decision addressing this Report 

and Recommendations.

December 10, 2018 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. A party may respond to another party’s objections within 

FOURTEEN days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

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

949-50 (6th Cir. 1981).