IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

PETER K. NEWMAN, ) 

 ) 

 Plaintiff, ) Case No. 3:18-cv-00088-TMR 

 ) 

 vs. ) 

 ) 

OHIO CIVIL RIGHTS COMMISSION, et al. ) Judge Thomas M. Rose

) 

Defendants. ) 

 

DEFENDANTS’ MOTION TO DISMISS ALL 42 U.S.C. § 1983 CLAIMS 

and 

MOTION TO REMAND THE OHIO REV. CODE ANN. § 4112.06 REQUEST FOR 

JUDICIAL REVIEW 

 Defendants Ohio Civil Rights Commission, Leonard J. Hubert, Lori Barreras, Juan 

Cespedes, William Patmon III, Madu Singh, G. Michael Payton, Stephanie Bostos-Demers, 

Desmon Martin, Vera Boggs, Duffy Jamieson, Kathy Haley Ross, and Stephan Smith [sic, Stefan 

Schmidt] move this Court to dismiss all 42 U.S.C. § 1983 claims against all Defendants pursuant 

to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and to remand the Ohio Rev. Code § 4112.06 judicial 

review request. The reasons for this Motion are set forth in the attached memorandum. 

 Respectfully submitted, 

 MICHAEL DEWINE, 

 ATTORNEY GENERAL 

 /s/ Patrick M. Dull 

 Patrick M. Dull (0064783) 

 Lori Anthony (0068695) 

 Assistant Attorneys General, Civil Rights Section 

 30 East Broad Street, 15th Floor 

 Columbus, Ohio 43215-3428 

 patrick.dull@ohioattorneygeneral.gov 

 Phone: 614-466-7900; Fax: 1-866-401-2829 

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1 

MEMORANDUM IN SUPPORT 

Introduction 

Plaintiff Peter K. Newman has brought 42 U.S.C. § 1983 claims against the Ohio Civil 

Rights Commission and twelve state employees for their roles in a Commission investigation. 

The Commission has discretion regarding how to conduct its investigations, State ex rel. 

Westbrook v. Ohio Civ. Rights Com., 17 Ohio St.3d 215, 217, 478 N.E.2d 799 (1985), and Ohio 

district courts have dismissed similar § 1983 claims against the Commission and its employees, 

Batavia Woods LLC v. Wainright, et al., S.D.Ohio No. 1:13-cv-00696, 2014 U.S. Dist. LEXIS 

23056, at *9-*19 (Feb. 24, 2014); Johnson v. Ohio Civ. Rights Comm., S.D.Ohio No. 2:06-cv0626, 2007 U.S. Dist. LEXIS 3124, at *7 (Jan. 16, 2007); Rhoades v. Ohio Civ. Rights Comm., 

N.D.Ohio No. 1:07 CV 0802, 2007 U.S. Dist. LEXIS 45523, at *13-14 (June 22, 2007). As a 

result, Mr. Newman’s § 1983 claims should likewise be dismissed.1 

Mr. Newman’s complaint also seeks judicial review of the Commission’s “no probable 

cause” decision pursuant to Ohio Rev. Code Ann. § 4112.06. Unlike his § 1983 claims, this is 

the proper method of review; however, the review request should be remanded to the 

Montgomery County Court of Common Pleas due to that court’s exclusive jurisdiction under 

Ohio Rev. Code Ann. § 4112.06(F). 

I. Background and summary of the Commission’s statutory process. 

Mr. Newman filed a charge with the Ohio Civil Rights Commission alleging that the 

University of Dayton (UD) engaged in employment discrimination against him. The 

Commission investigated and declined to sue UD because the investigation concluded Mr. 

 

1

 Mr. Newman has filed two nearly identical civil actions against the same Defendants: one 

addressing the Commission’s investigation into his allegations of employment discrimination 

(the complaint addressed by this Motion), the other addressing the Commission’s investigation 

into his allegations of public accommodation discrimination. Both civil complaints were 

removed simultaneously to this Court, and a Notice of Related Cases has been filed. 

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2 

Newman was terminated, not due to discrimination, but instead due to his unsatisfactory 

performance. (Complaint, ¶ 84). In an attempt to force the Commission to sue UD on his behalf, 

Mr. Newman has filed the instant complaint against the Commission and twelve state employees. 

A. Mr. Newman’s problems while employed at the University of Dayton. 

While employed as a professor at UD, Mr. Newman felt that one of his students “treated 

him less favorably” than the student treated other law school professors due to his race, sex, and 

age. He complained to Kim Bakota, who conducted an investigation; however, Mr. Newman 

found her investigation to be “inadequate.” (Complaint, ¶¶ 23-25, 41, 44, 86). 

Mr. Newman also felt that UD began retaliating against him due to his complaint to Ms. 

Bakota, and so he complained about this retaliation to Amy Zavadil. (Complaint, ¶¶ 25-27). Mr. 

Newman then suspected more retaliation (including his eventual termination) due to his new 

complaint. (Complaint, ¶¶ 24, 27, 30, 104). After his termination, Mr. Newman filed a federal 

employment discrimination lawsuit against UD (referenced in paragraph 58 of his complaint).2

 

Mr. Newman also filed a charge of employment discrimination with Defendant 

Commission, alleging that UD had unlawfully retaliated against him. (Complaint, ¶ 30). As with 

UD’s investigations, Mr. Newman found the Commission’s investigation into his allegations to 

be inadequate, and so he has filed the instant lawsuit against the Commission and the twelve 

state employees who were involved in the investigation of his charge. 

 

2

 Mr. Newman’s federal employment discrimination lawsuit against UD asserts numerous 

claims, including the retaliation and termination discussed above. (Southern District of Ohio, 

Case No. 3:17-cv-00179-TMR). This lawsuit was dismissed on October 31, 2017. There is 

currently an appeal pending in the Sixth Circuit (Case No. 17-4241). 

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B. The Ohio Civil Rights Commission’s investigation process. 

By filing his charge, Mr. Newman initiated a Commission investigation into his 

allegations against UD. That investigation and its results are the basis of Mr. Newman’s 38-page 

complaint critiquing the Commission’s process and its discretionary decision to not sue UD. 

Ohio law allows any person to file a charge alleging an unlawful discriminatory practice. 

Ohio Rev. Code Ann. § 4112.05(B)(1). The Commission then receives, investigates, and passes 

upon these charges. Ohio Rev. Code Ann. § 4112.04(A)(6). After receiving a charge, the 

Commission conducts an informal, ex parte investigation into the allegations. As noted in 

Ramudit v. Fifth Third Bank, 1st Dist. Hamilton No. C-030941, 2005-Ohio-374, ¶19.3

When an individual files a charge of unlawful discrimination, the commission 

initiates a preliminary investigation, which is an informal procedure conducted by 

members of the commission staff. If the commission determines after that 

investigation that it is not probable that unlawful discrimination has occurred, it 

must notify the complainant that it will not file a formal complaint in the matter. 

Before the filing of a complaint, the procedure is informal and ex parte. Although 

the commission investigates the charge, it does not receive formal evidence. 

See also Stallings v. Goshen Dairy Stores, 6th Cir. No. 95-3228, 1996 U.S. App. LEXIS 19128, 

at *11 (June 27, 1996) (“This court recognizes the informality inherent in claims that are rejected 

at the preliminary investigation level.”). 

As suggested in Ramudit, the Commission issues either a “probable” or “not probable” 

decision after each investigation. Ohio Rev. Code Ann. § 4112.05(B)(4). A “probable” decision 

means that the Commission pursues the allegations further: first by attempting conciliation, then 

by issuing an administrative complaint, and ultimately by holding an evidentiary hearing to 

assess whether unlawful discrimination actually occurred. Ohio Rev. Code Ann. § 

4112.05(B)(4)-(5). 

 

3

 Defendants recognize that this Court prefers citations to federal authority. Local Rule 

7.2(b)(2). However, there are few federal cases addressing the finer details of Commission 

process; where such federal cases exist, however, they will be cited. 

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In contrast, a “no probable cause” decision means that the Commission investigated the 

allegations in the charge, but declined to pursue them further, and so did not issue an 

administrative complaint or hold an evidentiary hearing. Ohio Rev. Code Ann. § 4112.05(B)(4). 

This is what happened to Mr. Newman’s charge – the Commission’s found “no probable cause,” 

declined to issue a complaint, and never held an evidentiary hearing regarding whether UD 

violated any law. Simply put, the Commission decided not to sue UD. 

C. The repercussions of a “no probable cause” decision. 

There are no repercussions resulting from a Commission “no probable cause” decision, as 

it is not adjudicative. Rhoades, 2007 U.S. Dist. LEXIS 45523, at *13 (Commission “no probable 

cause” decisions are “non-binding, non-final, investigative and not adjudicative in nature”). Mr. 

Newman, however, sees enormous repercussions resulting from the Commission’s decision to 

not sue UD: he hyperbolically claims “a substantial lasting impact” on his life, career, and 

reputation. (Complaint, ¶ 76). 

The Commission’s “no probable cause” decision has no legal impact on Mr. Newman. In 

fact, a person receiving a “no probable cause” decision can file their own civil complaint under 

Ohio Rev. Code Ann. § 4112.99 or Title VII making the same allegations as made in his or her 

charge. Dickinson v. Zanesville Metro. Hous. Auth., 975 F.Supp.2d 863, 875 (S.D.Ohio 2013) 

(“in cases where the OCRC does not issue a complaint, *** the OCRC decision is not 

preclusive.”); Smith v. Friendship Village of Dublin, 92 Ohio St.3d 503, 507, 2001-Ohio-1272, 

751 N.E.2d 1010 (“the filing of an unlawful discriminatory practice charge with the 

[Commission] does not preclude a person alleging handicap discrimination from instituting an 

independent civil action under Ohio Rev. Code Ann. § 4112.99.”). In sum, Mr. Newman may be 

disappointed that the Commission did not sue UD, but there was no other impact on him. 

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D. The Commission has discretion when deciding to sue after an investigation. 

The nature of the Commission’s informal investigation brings Mr. Newman’s arguments 

into sharper focus. Simply put, the bulk of his complaint seeks to impose a formal, adversarial 

standard upon the Commission’s informal, ex parte investigations. Indeed, much of Mr. 

Newman’s complaint contains arguments regarding burdens of proof, the McDonnell 

Douglas/Burdine burden-shifting framework, the prima facie case, pretext, and rebuttals. 

(Complaint, ¶¶ 2, 6, 33, 42-46, 53, 87-91, 97-101, 103-105). 

Certainly, these formulas are used when analyzing the merits of adversarial civil actions, 

but they are not appropriate when applied to the Commission’s informal investigation and 

decision to not issue a complaint. Stallings, 1996 U.S. App. LEXIS 19128, at *11 (during its 

preliminary investigation, “the [Commission] has not established adjudicatory procedures 

entitling [Stallings] to be heard at an adversary-oriented, evidentiary hearing on his charge of 

[age] discrimination against [Goshen Dairy].” [internal quotations and citations omitted]). 

As noted by the Ohio Supreme Court, “the commission has discretion in determining 

whether to issue a complaint after an investigation.” Westbrook, 17 Ohio St.3d, at 216. Given 

that the Commission does not receive formal evidence during its informal investigation, 

Ramudit, at ¶ 19, Mr. Newman’s attempts to impose an adversary-oriented, evidentiary standard 

upon Commission investigations should be rejected. Stallings, at *11. 

Here, the Commission’s investigation concluded it was “not probable” Mr. Newman was 

terminated due to unlawful retaliation, but rather it was due to his “unsatisfactory performance.” 

(Complaint, ¶¶ 84, 93, 100). Based upon this finding, the Commission understandably declined 

to accuse UD of unlawful discrimination. However, Mr. Newman argues that the Commission’s 

reasons for not suing UD are “incorrect” and based on UD’s “false” allegations about him. 

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(Complaint, ¶¶ 6-7, 35, 65, 68, 74, 76, 90, 93). Mr. Newman raised these same arguments before 

the Commission, and re-arguing them now in his complaint misses the point: the Commission 

has discretion when deciding whether to sue after its informal, ex parte investigation. 

Defendants ask this Court to dismiss all of Mr. Newman’s § 1983 claims, and remand his 

Ohio Rev. Code Ann. § 4112.06 judicial review request to its proper forum, the court of common 

pleas. 

II. LAW AND ARGUMENT

A. Mr. Newman’s 42 U.S.C. § 1983 claims. 

Mr. Newman’s § 1983 claims should be dismissed because the Commission’s “no 

probable cause” decision is “non-binding, non-final, investigative and not adjudicative in nature. 

*** Therefore, any claimed ‘breach of the duty’ to investigate does not give rise to a 

constitutional violation amounting to the deprivation of property or liberty interests.” Rhoades, 

2007 U.S. Dist. LEXIS 45523, at *13-14 (June 22, 2007). See also Batavia Woods, 2014 U.S. 

Dist. LEXIS 23056, at *9-*19, and Johnson, 2007 U.S. Dist. LEXIS 3124, at *7 (dismissing § 

1983 claims against the Commission and the state employees involved in its investigation). 

The allegations in Rhoades are remarkably similar to Mr. Newman’s. Like Mr. Newman, 

Mr. Rhoades called the Commission’s investigation “fake and shallow,” and claimed that 

Commission employees acted with prejudice, bias, and negligence, in violation of § 1983. 

Rhoades, 2007 U.S. Dist. LEXIS 45523, at *3-*7. The Court concluded that, because 

Commission determinations are non-binding, Mr. Rhoades “cannot sustain his civil rights claims 

against the OCRC or any of its employees pursuant to § 1983.” Id, at *13-*14. 

In addition to the Rhoades, Batavia Woods, and Johnson decisions, there are two main 

reasons to dismiss Mr. Newman’s § 1983 claims. First, this Court lacks subject matter 

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jurisdiction, as the Defendants are not “persons” as required by 42 U.S.C. § 1983, and they also 

have both absolute and qualified immunity for their actions. Second, Mr. Newman’s complaint 

fails to state a claim upon which relief can be granted because no federal rights are implicated – 

let alone violated – by an informal Commission investigation and “no probable cause” decision. 

i. 42 U.S.C. § 1983 is a vehicle to protect federal rights, not a tool 

to contest the results of a Commission investigation. 

42 U.S.C. § 1983 provides a remedy for when state actors violate federal rights. Edwards 

v. Univ. of Dayton, 142 F. Supp. 3d 605, 607 (S.D.Ohio 2015). It is not a bludgeon to force 

Commission employees to agree with Mr. Newman’s allegations of discrimination. 

The complaint repeatedly alleges that Defendants “erred” and made “incorrect” findings. 

(Complaint, ¶¶ 5-7, 16-18, 20, 35, 41, 49, 76, 83, 93). However, administrative officials are not 

liable under § 1983 “for mere mistakes in judgment, whether the mistake is one of fact or one of 

law.” Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). 

Mr. Newman also alleges that one person not named as a defendant, Investigator Charles 

Scandrick, urged a “probable cause” recommendation, but was “overruled” by his peers, 

supervisors, and legal counsel (all named as Defendants). (Complaint, ¶¶ 4-5, 19-20, 31-35). Mr. 

Newman then admits that it was the five Commissioners – not Mr. Scandrick, not his 

supervisors, not legal counsel – who made the final “no probable cause” determination after 

providing Mr. Newman with an occasion for reconsideration and an opportunity to appear before 

the Commissioners.4

 (Complaint, ¶¶ 9-11, 52-56). 

 

4

 Mr. Newman asserts that this opportunity for reconsideration was a “sham” because 

Reconsideration Supervisor Vera Boggs had submitted a “proposed Letter” containing her “no 

probable cause” recommendation prior to his appearance. (Complaint, ¶¶ 7, 12). Mr. Newman’s 

accusation is hollow; he admits that the letter was a proposed letter, which could have been 

rejected or modified. In fact, as Mr. Newman points out, one Commissioner voted to do exactly 

that. (Complaint, ¶¶ 11, 56). 

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Mr. Newman believes that his critiques should force the Commission to issue a complaint 

and hold an evidentiary hearing. (Complaint, ¶¶ 18, 70, 87, 91). In addition to discounting the 

Commission’s discretion, Westbrook, 17 Ohio St.3d, at 216, Mr. Newman simply has no 

property right to an evidentiary hearing. Salazar v. Ohio Civ. Rights Comm., 39 Ohio App.3d 26, 

overview, 528 N.E.2d 1303 (6th Dist.1987) (“The employee had no protectible property interest 

in an adversarial hearing because the Commission’s administrative rules did not require such a 

hearing.”). 

Although Mr. Newman identifies two federal rights he claims were violated (equal 

protection and due process, Complaint, ¶¶ 61-78), he provides no support for these allegations. 

ii. This Court lacks jurisdiction to hear Mr. Newman’s 42 U.S.C. 

§ 1983 claims. 

a. Civ.R. 12(b)(1) standard of review. 

When challenging a court’s subject matter jurisdiction under Rule 12(b)(1), a defendant 

can facially attack the plaintiff’s complaint by testing the sufficiency of the pleading itself. See

DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). This is the attack presented here, as 

the face of Mr. Newman’s complaint reveals the lack of jurisdiction. 

While Mr. Newman’s complaint contains several allegations, to the extent it challenges 

the Commission’s investigation and “no probable cause” determination, this Court lacks 

jurisdiction. Gilbert v. Correction Reception Ctr., S.D.Ohio No. 2:07-cv-624, 2008 U.S. Dist. 

LEXIS 70904, at *19 (Sep. 19, 2008) (“to the extent Plaintiff challenges the OCRC’s ‘no 

probable cause’ determination and the adequacy of the investigation leading up to it, this Court 

lacks jurisdiction to consider his claim.”). 

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b. The Ohio Civil Rights Commission is not a “person” 

and so cannot be sued under 42 U.S.C. § 1983. 

Mr. Newman notes that the Commission is a state agency. (Complaint, ¶ 15). As an 

agency of the State of Ohio, the Commission not a “person” and therefore cannot be sued under 

§ 1983, which only allows such actions against a “person.” Will v. Mich. Dep’t of State Police, 

491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (“We hold that neither a State nor its 

officials acting in their official capacities are ‘persons’ under § 1983.”). 

As a result, Mr. Newman’s § 1983 claims against the Commission should be dismissed 

because the Commission is not a “person” for purposes of the statute. 

c. The other Defendants have been sued in their official 

capacity, and so are not “persons” and cannot be sued 

under 42 U.S.C. § 1983. 

 In addition to the Commission itself, Mr. Newman’s complaint names twelve other 

Defendants. These Defendants will collectively be called the “State of Ohio Defendants.” 

State officials acting in their official capacities are “the State,” and not “persons” under § 

1983. Will, 491 U.S., at 71. This Court has dismissed a § 1983 action against Commission 

employees for this reason. Batavia Woods, 2014 U.S. Dist. LEXIS 23056, at *14-*19. 

As an initial matter, Mr. Newman explicitly states that his procedural due process claims 

are “official capacity” claims. (Complaint, ¶ 78). As a result, Mr. Newman is unable to bring his 

procedural due process claims against the State of Ohio Defendants because, in their “official 

capacity,” they are not “persons” for purposes of § 1983. Will, 491 U.S., at 71. 

Although he fails to plead “personal capacity” in any of the numbered paragraphs of his 

complaint, Mr. Newman does makes one conclusory mention that the State of Ohio Defendants 

acted in “Their Official and Personal Capacities” in the caption to his First Cause Of Action 

(alleging equal protection and substantive due process violations). However, the rest of his 

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complaint lacks any facts supporting this bald allegation. Indeed, the complaint contains a litany 

of factual allegations demonstrating the opposite: that the State of Ohio Defendants acted solely 

within their official duties by receiving Mr. Newman’s charge, investigating it, and passing upon 

it. (Complaint, ¶¶ 1-11). See Ohio Rev. Code Ann. § 4112.04(A)(6). Underscoring this point, 

Mr. Newman identifies these Defendants only by their work addresses (see complaint caption), 

as employees of the State (Complaint, ¶¶ 16-20), and by their job titles and duties (Id.). 

Consequently, these Defendants have been sued in their official capacities only and cannot be 

sued under § 1983. Will, 491 U.S. at 71; Batavia Woods, 2014 U.S. Dist. LEXIS 23056, at *19. 

d. The State of Ohio Defendants have absolute immunity. 

Just as a judge and prosecutor cannot be sued by a party disappointed with their judicial 

or prosecutorial decisions, administrative officers responsible for deciding whether to proceed 

with a case are afforded absolute immunity from liability for those decisions. See Butz, 438 U.S. 

478, 515-517; Mack v. Ohio State Dental Bd., 2001 Ohio App. LEXIS 1513, *15-*17.

As recognized in Butz, an individual disappointed by an administrative proceeding may 

react angrily and “seek vengeance in the courts.” Butz, 438 U.S., at 515. Acknowledging this, 

the Court held that absolute immunity from suit was necessary. Id. While this concept certainly 

protects prosecutors and judges, the Butz case holds that agency officials making decisions about 

“initiating or continuing” an administrative process are also entitled to absolute immunity: 

We believe that agency officials must make the decision to move forward with an 

administrative proceeding free from intimidation or harassment. Because the legal 

remedies already available to the defendant in such a proceeding provide 

sufficient checks on agency zeal, we hold that those officials who are responsible 

for the decision to initiate or continue a proceeding subject to agency adjudication 

are entitled to absolute immunity from damages liability for their parts in that 

decision. Butz, 438 U.S., at 516. 

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The Butz analysis has been applied to the conduct of state actors during an agency 

investigation, as well. Mack, 2001 Ohio App. LEXIS 1513, *15-*16 (“Appellant argues that Butz

and its progeny are inapplicable to this case because her complaints are based on appellees’ 

conduct during an investigation, not during adjudication. We find appellant’s argument without 

merit.”). See also Grybosky v. Ohio Civ. Rights Comm., 11th Dist. Ashtabula No. 2010-A-0047, 

2011-Ohio-6843, ¶¶ 16-25 (holding Assistant Attorney General to be absolutely immune). 

Here, each of the State of Ohio Defendants are accused of having a role in the decision to 

not initiate a Commission proceeding. Nevertheless, the same principle applies: they should be 

“free from intimidation or harassment *** for their parts in that decision.” Butz, 438 U.S., at 516. 

e. The State of Ohio Defendants have qualified immunity. 

The State of Ohio Defendants also have qualified immunity because their actions did not 

violate clearly established rights. In fact, clearly established precedent dictates that this Court 

should reject a § 1983 claim targeting the state actions at issue here. Batavia Woods, 2014 U.S. 

Dist. LEXIS 23056, at *19 (“given the strength of the precedent supporting their position, the 

Court thinks it appropriate to GRANT the motion to dismiss filed by the State of Ohio 

Defendants on the basis that we lack subject matter jurisdiction.”); Rhoades, 2007 U.S. Dist. 

LEXIS 45523, at *13-14 (“Mr. Rhoades cannot sustain his civil rights claims against the OCRC 

or any of its employees pursuant to § 1983.”); Johnson, 2007 U.S. Dist. LEXIS 3124, at *7. 

The Supreme Court has stressed that, unless the plaintiff alleges the violation of a 

“clearly established” right, a defendant pleading qualified immunity “is entitled to dismissal 

before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 

(1985). The reviewing court “need not consider the correctness of the plaintiff’s version of the 

facts, nor even determine whether the plaintiff’s allegations actually state a claim. All it need 

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determine is a question of law: whether the legal norms allegedly violated by the defendant were 

clearly established at the time of the challenged actions or *** whether the law clearly 

proscribed the actions the defendant claims he took.” Mitchell, 472 U.S., at 528. 

The right allegedly violated must be sufficiently clear to put Defendants on notice that 

their particular conduct violates the federal right. Nuovo v. The Ohio State Univ., 726 F. Supp. 

2d 829, 851 (S.D. Ohio 2010) (The doctrine of qualified immunity “is inherently dependent upon 

the clarity of the legal constraints governing the particular conduct”). Here, the question of law 

is whether there is a “clearly established” right violated when the Commission decides not to sue. 

There is no precedent identifying a “clearly established” federal right related to any 

action involved in investigating or processing a charge of discrimination. To the contrary, as 

noted above, precedent dictates that a court should reject a § 1983 claim targeting such actions. 

Batavia Woods, 2014 U.S. Dist. LEXIS 23056, at *9-*19; Rhoades, 2007 U.S. Dist. LEXIS 

45523, at *13-14; Johnson, 2007 U.S. Dist. LEXIS 3124, at *7. In addition, the Commission 

simply has discretion regarding its investigations. Westbrook, 17 Ohio St.3d, at 217. 

Because Mr. Newman identifies no clearly established federal rights violated by the 

Defendants’ actions, qualified immunity attaches, and the § 1983 claims should be dismissed. 

iii. Pursuant to Civ.R. 12(b)(6), Mr. Newman’s § 1983 allegations 

fail to state a claim for which relief can be granted. 

a. Civ.R. 12(b)(6) standard of review. 

In deciding a motion to dismiss for failure to state a claim under Civ.R. 12(b)(6), courts 

“construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, 

and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 

471, 476 (6th Cir. 2007). However, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 

1955 (2007), the Supreme Court stressed that the factual allegations “must be enough to raise a 

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right to relief above the speculative level.” Twombly, at 555. And while Civ.R. 8 establishes a 

liberal system of notice pleading, “a plaintiff’s obligation to provide the ‘grounds’ of his 

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of 

the elements of a cause of action will not do.” Twombly, at 555. 

 In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), the Court expounded upon the 

“two working principles” that underlie the Twombly decision. Iqbal, at 678. First, “the tenet that 

a court must accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice” to a state a claim. Id., at 678. Second, “only a complaint 

that states a plausible claim for relief survives a motion to dismiss.” Id., at 679. To establish 

“facial plausibility,” a plaintiff must plead “factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id., at 678. 

 b. The complaint contains no facts to support an equal 

protection claim. 

In support of his equal protection claim, Mr. Newman asserts that “the OCRC, though 

[sic] the individual Defendants, treated him differently than it treated similarly situated charging 

parties outside his protected classes (male, white, and age) when it failed to investigate three of 

his four retaliation claims and then issued a final order dismissing his charge.” (Complaint ¶ 63). 

This assertion appears for the first and only time in Paragraph 63. It fails to state a claim 

because Mr. Newman provides no factual basis to support any unlawful activity: there are no 

facts alleging a causal connection (i.e., that Defendants treated Mr. Newman differently because 

he is white, male, and of an unknown age), no facts alleging that any Defendant held a 

discriminatory animus against him, and no examples of any actual persons treated differently 

than he was treated (let alone treated differently because of race, sex, or age). 

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As the Supreme Court in Twombly noted, the allegations made in a complaint “must be 

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S., at 555. Here, 

Mr. Newman fails to plead facts establishing the “facial plausibility” of any claim. Iqbal, at 678-

679. As one court has noted, “The days of ‘shoot first, ask questions later,’ are over in the 

federal district courts.” Hamer v. Cty. of Kent, W.D.Mich. No. 1:13-cv-504, 2013 U.S. Dist. 

LEXIS 186512, at *21 (Nov. 6, 2013); see also Robertson v. Montgomery Cty. Dev. Ctr., 

S.D.Ohio No. 3:15-cv-251, 2016 U.S. Dist. LEXIS 71407, at *11-12 (June 1, 2016) (“Twombly

has dictated that courts may no longer accept conclusory legal allegations that do not include 

specific facts necessary to establish the cause of action.”). Mr. Newman’s allegation lacks any 

supporting specific facts necessary to make his claim rise “above the speculative level,” 

Twombly, at 555, and so this Court should dismiss it due to the failure to state a claim. 

c. Due process is not violated when judicial review is available. 

Mr. Newman also claims that his due process rights were violated. (Complaint, ¶¶ 65-68, 

72-78). However, before any Commission action become effective, it is first subject to judicial 

review and court enforcement. Ohio Rev. Code Ann. § 4112.06(A), (H). Because of these 

additional requirements, there can be no due process violations by the Commission’s decision. 

Stallings, 1996 U.S. App. LEXIS 19128, at *10 (“These opportunities for administrative and 

judicial review [under § 4112.06] meet the threshold due process requirements.”); see also 

Rhoades, 2007 U.S. Dist. LEXIS 45523, at *13-14 (“Due process is satisfied if there is an 

opportunity to be heard before any final order of the agency becomes effective.”). 

Moreover, the Commission’s investigation process is not an interest protected by the Due 

Process Clause. Johnson, 2007 U.S. Dist. LEXIS 3124, at *6-7 (“the Due Process Clause does 

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15 

not create a life, liberty or property interest in following state-created procedures. Put simply, 

there is no protected interest in the [Commission’s] procedure itself.”). 

As noted above, the process granted by Ohio law amounts to the Commission receiving, 

investigating, and passing on charges filed with it. Ohio Rev. Code Ann. § 4112.04(A)(6). Mr. 

Newman received all of this and more, and he fails to cite any law entitling him to the laundry 

list of process demands outlined in his “Conclusion And Prayer For Relief.” This is because 

there are no such entitlements, and therefore no due process violations. 

In Salazar (39 Ohio App.3d 26, discussed above), plaintiff Vincent Salazar filed a charge 

alleging that his employer terminated him due to a disability. The Commission conducted an 

investigation, and ultimately found “no probable cause” to believe that he had been unlawfully 

discriminated against. Mr. Salazar petitioned for judicial review alleging denial of due process. 

Similar to Mr. Newman, Mr. Salazar complained that the Commission should have 

permitted him to “inspect the contents of its investigative file in order to ascertain whether the 

investigator was doing a fair or adequate job.” Also like Mr. Newman, Mr. Salazar argued that 

the Commission should have allowed him to present rebuttal evidence, and in general should 

have an investigation process that is more like an adversarial trial. (compare Salazar, 39 Ohio 

App.3d 26, at 29, with Complaint, ¶¶ 31, 53, 72, 78, Conclusion And Prayer For Relief). 

Citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), the court in Salazar held 

that although Mr. Salazar did have a property interest in filing a charge and in having the 

Commission pass upon it, there was no comparable property interest in the other items he 

demanded because Ohio law did not entitle him to such procedures. See Ohio Rev. Code Ann. § 

4112.04(A)(6); Salazar, 39 Ohio App.3d 26, at 29-31; see also Stallings, 1996 U.S. App. LEXIS 

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19128, at *11 (“The OCRC procedures that guide a no probable cause finding, while failing to 

guarantee the trial-like hearing that [petitioner] desires, offer sufficient due process.”). 

 Just as Mr. Salazar was not deprived of any Commission procedure conferred by the 

statute, Mr. Newman likewise received all the process he was due – he filed a charge, it was 

investigated, and the Commission passed upon it. Consequently, as Mr. Newman has failed to 

show any denial of due process, his § 1983 claims should be dismissed.5 

d. Mr. Newman’s due process claims against the Commission 

mainly contest the actions of the University of Dayton. 

Mr. Newman identifies two specific substantive due process violations for which he 

claims the Defendants are responsible: 1) he was deprived of his property interest in continuing 

to be an adjunct professor at UD, and 2) he was deprived of his liberty interest in continuing to 

work as an adjunct professor at UD. (Complaint ¶¶ 65-66, 74, 76). 

Of course, Mr. Newman is no longer a professor at UD due to the decisions of UD, not 

the Defendants. Although he tries to blur responsibility, Mr. Newman admits that it was UD that 

made the decision to terminate him. (Complaint ¶ 43). 

The Defendants are not responsible for Mr. Newman’s termination; they merely looked 

into his subsequent allegations of retaliation, and decided not to sue UD. The Commission did 

not owe Mr. Newman the additional constitutional duty of suing UD, or otherwise forcing UD to 

re-hire him – especially when the Commission’s own investigation concluded that Mr. Newman 

was likely fired due to his “unsatisfactory performance.” (Complaint, ¶ 84). 

 

5

 Regarding all the demands made by Mr. Salazar, the court prudently noted that “We 

believe that appellant’s arguments concerning the kind of adjudicatory procedures followed, or, 

rather, the kinds not followed, by the commission at the preliminary investigation stage would be 

best addressed to the commission itself. That is the institution empowered by law to make the 

kind of changes which appellant seeks.” Salazar, 39 Ohio App.3d, at 31. 

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17 

e. Mr. Newman provides no facts to support his allegation of bias. 

Mr. Newman alleges that the Defendants violated his procedural due process rights by 

denying him “fair and impartial” investigators, and by not allowing him to cross-examine 

witnesses. (Complaint, ¶¶ 72-78). Mr. Newman was not entitled to cross-examine witnesses 

during the Commission’s investigation. Salazar, 39 Ohio App.3d, 30 (“Ohio law has not 

conferred upon appellant an individual entitlement to an adversary-oriented, evidentiary hearing 

at the preliminary investigation stage of his handicap discrimination charge.”); Stallings, 1996 

U.S. App. LEXIS 19128, at *11. 

Although he repeatedly calls Reconsideration Supervisor Vera Boggs “biased” 

(Complaint, ¶¶ 7, 18, 47, 76, 78, Conclusion and Prayer for Relief), Mr. Newman provides no 

facts to support his allegation, other than to note that Ms. Boggs sought information from UD. 

(Complaint, ¶¶ 7, 47: “Boggs instead became a biased advocate for UD by going out of her way 

to solicit new evidence from UD’s lawyers in an attempt to shore up UD’s defenses to Plaintiff’s 

retaliation claims.”). Oddly, Mr. Newman’s allegation of bias actually reveals an investigation. 

f. The Commission’s actions do not “shock the conscience.” 

Mr. Newman alleges that three actions of the State of Ohio Defendants “shock the 

conscience”: 1) the Commission accepted UD’s argument that certain documents were beyond 

the scope of Mr. Newman’s charge or were otherwise protected by law from disclosure, 2) 

Reconsideration Supervisor Vera Boggs submitted a proposed “no probable cause” letter prior to 

Mr. Newman’s appearance for his reconsideration request, and 3) the Commission decided not to 

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18 

further investigate a new issue raised by Mr. Newman during his appearance before the 

Commissioners. (Complaint, ¶ 68). None of these actions “shock the conscience.”6

 

The Commission has broad discretion regarding how it conducts its investigations. 

Westbrook, 17 Ohio St.3d, at 217. There is nothing shocking about the documents obtained by 

an investigator during the discretionary investigation or by a recommendation proposing a “no 

probable cause” finding. Likewise, the Commission’s decision not to extend its investigation 

further following Mr. Newman’s reconsideration appearance does not “shock the conscience.” 

Pursuant to Westbrook, Stallings, Salazar, and the rest, Mr. Newman was never entitled 

to any of the things he demanded at the investigatory stage. Consequently, he was not denied 

due process – or any other constitutional right – during the Commission’s investigation. 

Accordingly, Mr. Newman’s § 1983 claims should be dismissed. 

B. Mr. Newman’s petition for judicial review. 

Finally, Mr. Newman’s complaint also presents an administrative appeal pursuant to 

Ohio Rev. Code Ann. § 4112.06. Unlike his § 1983 claims, Ohio Rev. Code Ann. § 4112.06 is 

the proper avenue to contest a Commission “no probable cause” decision. However, the 

Defendants respectfully ask that Mr. Newman’s request for judicial review be remanded to the 

Montgomery County Court of Common Pleas. 

In his complaint, Mr. Newman notes that the Ohio Courts of Common Pleas have 

exclusive jurisdiction over appeals of Commission rulings. (Complaint, ¶ 59). This is true. Ohio 

Rev. Code Ann. § 4112.06(F); Gilbert, 2008 U.S. Dist. LEXIS 70904, at *19. Pursuant to 28 

U.S.C. § 1441(c)(2), the Defendants respectfully ask that Mr. Newman’s judicial review request 

be severed and remanded to the Montgomery County Court of Common Pleas or, in the 

 

6

 Actions that “shock the conscience,” and are therefore sufficient to violate substantive 

due process, include actions that violate the “decencies of civilized conduct.” Cty. of Sacramento 

v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). 

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19 

alternative, remanded pursuant to 28 U.S.C. § 1367(c)(3) after this Court has dismissed Mr. 

Newman’s § 1983 claims. 

III. CONCLUSION 

For the above reasons, all of Mr. Newman’s § 1983 claims against the Defendants should 

be dismissed, and his Ohio Rev. Code Ann. § 4112.06 request for judicial review should be 

remanded to the Montgomery County Court of Common Pleas. 

Respectfully submitted, 

 MICHAEL DEWINE 

 ATTORNEY GENERAL 

 /s/ Patrick M. Dull 

 Patrick M. Dull (0064783) 

 Lori Anthony (0068695) 

 Assistant Attorneys General 

Civil Rights Section 

 30 East Broad Street, 15th Floor 

 Columbus, Ohio 43215-3428 

 patrick.dull@ohioattorneygeneral.gov 

 lori.anthony@ohioattorneygeneral.gov 

 Phone: 614-466-7900 

 Fax: 1-866-401-2829 

CERTIFICATE OF SERVICE 

I hereby certify that a true and accurate copy of the foregoing Motion was filed with the 

Court’s CM/ECF system, and served via U.S. mail, postage prepaid, upon plaintiff Peter K. 

Newman, 594 Garden Road, Dayton, Ohio 45419, on this 23rd day of March, 2018. 

MIKE DEWINE 

 ATTORNEY GENERAL 

 /s/ Patrick M. Dull 

 Patrick M. Dull (0064783) 

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