UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Tamera Brown, et al., 

 Plaintiffs,

v.

City of Cincinnati, et al.,

Defendants.

:

:

:

:

:

Case No. 1:18cv412

Judge Dlott 

Magistrate Judge Litkovitz

I. Introduction

Plaintiffs, Tamara Brown and Joy Ludgatis (“Plaintiffs”) object to the decision of the 

Magistrate granting Defendants’ Motions for Judgment on the Pleadings.1 In their respective 

motions for judgment on the pleadings, defendants Danita Pettis and the Sentinel Police 

Association followed by City of Cincinnati and the other city defendants (collectively 

“Defendants”) improperly asked the Magistrate to conclude factual, dispositive findings on 

main elements of Plaintiffs’ claims. The Magistrate did so and as a result erroneously 

disposed of Plaintiffs’ well-pled and viable claims. 

As laid out more fully below, the Magistrate erred in granting Defendants’ Motions for 

Judgment on the Pleadings by improperly deciding the merits of Plaintiffs’ claims and 

ignoring, or disregarding, the existence of material issues of fact. 

1 Case: 1:18-cv-00412-MWM-KLL Doc #: 50

PLAINTIFFS’ OBJECTIONS

TO MAGISTRATE’S DECISION

(Oral Argument Requested)

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 1 of 9 PAGEID #: 663
2

II. Legal Standard

The Magistrate failed to properly apply the law under Civ. R. 12(C) governing motions for 

judgment on the pleadings. Specifically, “In considering a motion for judgment on the 

pleadings, the trial court is required to view the facts presented in the pleadings alone, and 

the inferences to be drawn therefrom, in the light most favorable to the non-moving party. 

The motion should be granted only if the movant establishes that no material issue of fact 

awaits resolution and that it is entitled to judgment as a matter of law.”2 “While a motion 

for a judgment on the pleadings is disfavored, it will be granted once the movant has 

established that there is no material issue of fact which remains to be resolved.”3 “Under Civ. 

R. 12(C), if the party opposing the judgment pleads facts which are contradictory to those 

alleged by the moving party, the motion must be denied.”4

As the Magistrate cites in the Report and Recommendation, “For purposes of a motion 

for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the 

opposing party must be taken as true, and the motion may be granted only if the moving 

party is nevertheless clearly entitled to judgment.”5 Moreover, a complaint should withstand 

2 Blue Ash Bldg. & Loan Co. v. Hahn, 20 Ohio App.3d 21, 484 N.E.2d 186 (App. 1 Dist. 1984) at ¶ 4 of 

the Syllabus (emphasis added); See also Williams v. Village of Deer Park, 78 Ohio App. 231, 69 

N.E.2d 536 (App. 1 Dist. 1946) (stating in ¶¶ 2 and 3 of the Syllabus: “2. On motion for judgment on 

the pleadings, filed by a defendant, the allegations of the petition and reply are to be taken as true 

and are to be given the most favorable construction to the plaintiff who is also entitled to all 

reasonable and fair inferences and intendments to be drawn from such facts so alleged by the 

plaintiff. 3. On such motion so filed by the defendant, the plaintiff is also entitled to the advantage 

of all allegations in the answer which are favorable to him and which he has not denied.)

3 Carolyn Riley & Associates Inc. v. Paul Falb, 87-LW-3963, 13083, Ct. of App. of Ohio, 9th Distr. 

Summit, September 16, 1987 (emphasis added).

4 Id.

5 JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and 

quotation marks omitted))

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 2 of 9 PAGEID #: 664
3

a motion for judgment on the pleadings if contains “direct or inferential allegations

respecting all the material elements under some viable legal theory.”6

III. Plaintiffs Have Pled Viable Title VII and Ohio Rev. Code § 4112.02 (A) Hostile 

Work Environment Claims

To establish a hostile work environment claim, a plaintiff must show that: (1) she was a 

member of the protected class; (2) she was subjected to unwelcome harassment, based on 

sex or race; (3) the harassment had the effect of unreasonably interfering with her work 

performance and created an objectively intimidating, hostile, or offensive work 

environment; and (4) there exists some basis for liability on the part of the employer.7

Conduct must be “severe or pervasive enough to create an environment that a reasonable 

person would find hostile or abusive and the victim must subjectively regard that 

environment as abusive.”8

Courts have found that comments of a continual nature are more likely to be deemed 

pervasive.9 The Magistrate erred in refusing to accept two of the Plaintiffs’ allegations as 

true.10 In so doing, the Magistrate cites Croce v. New York Times Co. which stands for the 

proposition that courts are not bound to accept as true a plaintiff’s factual assertions 

inconsistent with documents attached for support.11 In their Second Amended Complaint, 

which the Magistrate cites to, the Plaintiffs cite to their Exhibit 11 and Internal 

6 Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007)(emphasis 

added).

7 Warf v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 878 (6th Cir. 2013).

8 Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000).

9 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008).

10 Doc # 50 at 5.

11 Croce v. New York Times Co., 930 F.3d 787, 792 (6th Cir. 2019).

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 3 of 9 PAGEID #: 665
4

Correspondence Sheet from Pettis with the subject line “Request for temporary transfer of 

Specialist Joy Ludgatis and Officer Tamera Brown.”12 The Magistrate’s claim that supporting 

documents are somehow inconsistent with Plaintiffs’ transfer allegations is incredible given 

the exact documentation of these allegations cited to in their complaint. Additionally, the 

Magistrate concludes without analysis that allegations by Plaintiffs’ that the City failed to 

impose meaningful discipline for Pettis’s misconduct is not supported by investigation 

documents. In the immediately previous footnote, the Magistrate quotes Croce as saying the 

court is not bound to accept factual assertions inconsistent with a document attached for 

support. The Magistrate makes no mention of inconsistency in the supporting documents 

when refusing to accept as true Plaintiffs’ allegation of failure to address the hostile work 

environment created by Pettis. These conclusions by the Magistrate are improper and a 

grand example of the Magistrate’s refusal to acknowledge dispute of material facts, errors 

which permeate the Magistrate’s dismissal of each of Plaintiffs’ claims. 

The Magistrate has wrongly concluded that “Plaintiffs have not provided sufficient 

factual content for the Court to reasonably infer that they were subjected to harassment 

based on their race or sex.”13 The crux of the Magistrate’s determination on this claim, and 

the others, is an erroneous conclusion that none of the Plaintiffs’ allegations suggest, nor 

raise an inference, that Defendant Pettis’s comments or actions were based on Plaintiffs’ race 

or sex.14 Based on this assertion, the Magistrate proposes Plaintiffs’ hostile environment 

12 Case: 1:18-cv-00412-MWM-KLL Doc #: 23, Exhibit 11.

13 Id. at 14.

14 Id.

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 4 of 9 PAGEID #: 666
5

claims fail only on the second prong that “subjected to unwelcome harassment, based on sex 

or race.” 

Plaintiffs allegations obviously both suggest and infer they were harassed based on their 

sex and/or race. In determining allegations did not raise an inference that Pettis’s comments 

were based on sex or race, the Magistrate cited Arendale v. City of Memphis15 and Barnette v. 

Dep’t of Veterans Affairs.16 Both of these cases stand for the premise that personal conflict 

alone does not equate to racial or gender motivated harassment. In contrast however, 

Plaintiffs’ claims do not reference personal conflict alone. Instead Plaintiffs’ offer a breadth 

of examples of racially motivated policies apparent in the department. The Magistrate does 

not consider these policies determining that Plaintiffs’ have failed to allege they apply to 

Plaintiffs. By virtue of their race, these alleged policies apply to Plaintiffs and breed fear of 

disparate treatment and harsher punishments for perceived misconduct. The Magistrate 

asserts the allegations do not raise an inference of racially or gender motivated harassment 

but surely evidence of racially motivated policies suggest African American Defendant 

Pettis’s harassment of the Caucasian Plaintiffs may have been based on race. 

Further suggestions of race or sex based harassment contained in Plaintiffs’ claims 

include their being singled out by Pettis and disparately denied the opportunity to speak 

publicly about their claims. The Magistrate posits that because “much of” Pettis’s verbal 

abuse was directed towards the entire third shift all officers were equally subjected to the 

abuse.17 Ludgatis’s internal complaint alleges Pettis made comments which belittled 

15 519 F.3d 587, 606 (6th Cir. 2008).

16 153 F.3d 338, 343 (6th Cir. 1998).

17 Doc # 50 at 15.

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 5 of 9 PAGEID #: 667
6

Ludgatis’s contributions as a desk officer and implied she would never risk her own personal 

safety for the good of others.18 The Magistrate ignores the verbal abuse which was directed 

specifically at Plaintiffs and dismiss the harassing behavior as only a “tension-filled work 

environment.” The Magistrate cites El-Hallani v. Huntington Nat. Bank saying allegations 

about discriminatory conduct “based on nothing more than plaintiff’s belief” are naked 

assertions insufficient to state a claim.19 Such allegations are distinct from those made by 

Plaintiffs who include, in addition to beliefs, more facts to bolster their claims including 

current discriminatory policies, disparate treatment between themselves and Pettis, and 

lenient discipline for Pettis. 

As Defendants do in their Motions for Judgment on the Pleadings, the Magistrate 

conclusively determines Defendants’ conduct was not race-based and extrapolates 

inadmissible, isolated bits of evidence rather than viewing the factual allegations and 

exhibits in their totality. The Magistrate points to the fact that no witness stated that Pettis 

treated officers differently because of race as dispositive of Plaintiffs’ claims. But Defendants 

cannot rely on inadmissible hearsay materials to prove a contested factual issue on the 

merits of the claims and the Magistrate certainly cannot do so when deciding on a motion for 

judgment on the pleadings. As the Magistrate notes, when assessing a hostile work 

environment claim, courts consider the totality of the circumstances.20 Such consideration 

was not afforded to Plaintiffs in this case. 

18 Doc #: 23 at 45. 

19 623 F. App’x 730, 735 (6th Cir. 2015).

20 Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citing Harris, 510 U.S. at 23). 

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 6 of 9 PAGEID #: 668
7

IV. Plaintiffs Have Pled Viable Retaliation Claims under Title VII

The Magistrate erred in concluding no reasonable person would believe Plaintiffs’ 

allegations contained in Plaintiffs’ internal complaints constitute an unlawful racially or 

sexually hostile work environment. In order to reach this conclusion, the Magistrate had to 

improperly decide, or utterly disregard, disputes of material fact. First the Magistrate 

disregards completely, by refusing to accept as required by the legal standard, the material 

allegations of disparate treatment of Pettis and Pettis’s request for Plaintiffs’ transfer. These 

allegations, among others, evidence the race and sex-based hostile work environment and a 

reasonable person could believe as much. 

Again, the Magistrate relies on the erroneous conclusion that none of the Plaintiffs’ 

allegations suggest, nor raise an inference, that Defendants abusive and harassing comments 

and actions were based on Plaintiffs’ race or sex. For the same aforementioned reasons, the 

Magistrate’s determination as to Plaintiffs’ retaliation claims is improper, in violation of the 

legal standard for a judgment on the pleadings and, accordingly, should be vacated. 

V. Plaintiffs Have Pled Viable First Amendment Claims 

The Magistrate improperly concluded Plaintiffs’ First Amendment claims must fail 

because the content of their speech was not a matter of public concern and they were not 

speaking as private citizens. If speech is clearly owed to plaintiff’s responsibility as a 

government employee, then the speech was pursuant to her official duties and not made as 

a citizen.21 In analyzing this issue, the Magistrate refers almost exclusively to the speech 

21 Holbrook v. Dumas, 658 F. App’x 280, 288 (6th Cir. 2016).

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 7 of 9 PAGEID #: 669
8

contained in Plaintiffs’ internal complaints. Because the setting of the speech and its 

audience is a factor relevant to determining whether speech was made pursuant to official 

duties, this is a mistake.22 Plaintiffs requested permission from Defendants – their 

supervisors--to speak to the media about their lawsuit, and Defendants rejected their 

request, without reason and based on Plaintiffs’ race.

Plaintiffs’ speech was not as the Magistrate claims merely about “command decisions” 

and done only pursuant to their employment. The fact that Plaintiffs’ speech was, in part, on 

City of Cincinnati Department letterhead is not in anyway dispositive. Employment issues 

are not conclusively independent and exclusive of issues which are of public concern. Indeed, 

Plaintiffs’ complaints and allegations are not solely related to employment but also the 

discriminatory and abusive treatment by a fellow citizen. Certainly, at this very tense and 

important time in our nation’s history allegations of race and sex-based harassment are of 

great public concern. Moreover, given the current climate in our nation race and sex-based 

behavior within the police department is especially concerning. It is not merely 

“unprofessional conduct,” as the Magistrate has erroneously concluded, which is alleged but 

rather a deeper matter racially motivated behavior which is of public concern. Of course, in 

order to understand Plaintiffs’ publicly concerning claims of harassment in violation of Title 

VII, one must accept Plaintiffs’ allegations of the like which the Magistrate, in the Report and 

Recommendation, repeatedly failed to do. 

22 Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 540 (6th Cir. 2012).

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 8 of 9 PAGEID #: 670
9

VI. Conclusion 

In deciding a motion for judgment on the pleadings, the court is required to construe all 

factual allegations in favor of the nonmovant party and grant the motion only if the moving 

party is nevertheless clearly entitled to judgment. In granting the Defendants’ Motions for 

Judgment on the Pleadings, the court utterly failed to adhere to the standard of review for 

such motions. For this reason and in accordance with the foregoing, the Court should vacate 

the Magistrate’s Decision and permit Plaintiffs to proceed on the claims set forth in the 

Complaint.

Respectfully submitted,

/s/Zachary Gottesman

Zachary Gottesman (0058675)

Gottesman & Associates, LLC

Trial Counsel for Plaintiffs

404 East 12th St., First Floor

Cincinnati, OH 45202-7463

T: 513-651-2121

F: 513-651-2131

zg@zgottesmanlaw.com

CERTIFICATE OF SERVICE

I hereby certify that on Aug. 27, 2020, a true and accurate copy of the foregoing was 

filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s 

electronic filing system. No copies of this filing are being mailed to any parties, as all parties 

are currently being served via the Court’s electronic filing system and thereby may access 

this filing through that system. 

/s/ Zachary Gottesman

Zachary Gottesman (0058675)

Case: 1:18-cv-00412-MWM-KLL Doc #: 53 Filed: 08/27/20 Page: 9 of 9 PAGEID #: 671