IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

 WESTERN DIVISION

J EWELL EVETTE J ONES, et al., 

Plaintiffs, 

v.

MONTGOMERY COUNTY 

DEPARTMENT OF J OB AND 

FAMILY SERVICES, CHILDREN 

SERVICES DIVISION, et al.,

Defendants. 

: 

: 

: 

Case No. 3:18-cv-00037

J UDGE WALTER H. RICE

DECISION AND ENTRY ADOPTING IN PART AND REJ ECTING IN 

PART THE REPORT AND RECOMMENDATIONS OF THE UNITED 

STATES MAGISTRATE J UDGE (DOC. #57); SUSTAINING THE 

OBJ ECTIONS OF DEFENDANTS MONTGOMERY COUNTY 

DEPARTMENT OF J OB AND FAMILY SERVICES, CHILDREN 

SERVICES DIVISION; J EWELL GOOD; DEBBY SHAW; SANDRA 

MUNDY AND DEANSAI MYERS (“MONTGOMERY COUNTY 

DEFENDANTS”) AND J ANE HAY (DOC. #59); OVERRULING THE 

SEPARATE OBJ ECTIONS OF J ANE HAY (DOC. #58); DEFENDANTS 

TOM KELLEY, MICHELLE MATTHEWS AND RONALD CHURCH 

DISMISSED WITHOUT PREJ UDICE; MONTGOMERY COUNTY 

DEPARTMENT OF J OB AND FAMILY SERVICES, CHILDREN 

SERVICES DIVISION DISMISSED AS NOT SUI J URIS AND 

MONTGOMERY COUNTY SUBSTITUTED AS DEFENDANT; 

SUSTAINING THE MOTION TO DISMISS OF MONTGOMERY 

COUNTY DEFENDANTS AND J ANE HAY (DOC. #37); AND 

SUSTAINING IN PART AND OVERRULING IN PART THE SEPARATE 

MOTION TO DISMISS OF DEFENDANT J ANE HAY (DOC. #38)

This m atter is before the Court on Magistrate J udge Michael Newm an’s 

Report and Recom m endations, Doc. #57. Objections have been filed by the 

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Montgom ery County Departm ent of J ob and Fam ily Services, Children Services 

Division (“MCDJ FS” ), and the following em ployees of MCDJ FS: J ewell Good

(“Good”); Debby Shaw (“Shaw”); Sandra Mundy (“Mundy” ); Deansai Myers 

(“Myers”) and J ane Hay (“Hay”), Doc. #59. MCDJ FS, Good, Shaw, Mundy and 

Myers are referred to, collectively, as the “Montgom ery County Defendants.”

Separate objections to the Report and Recom m endations were also filed by Hay, 

Doc. #58.

Plaintiff, pro se , J ewell Evette J ones (“Plaintiff“ or “Jones”), has not filed 

any objections to the Report and Recom m endations. 

The Court has reviewed the Motion to Dism iss filed by the MCDJ FS, Tom 

Kelley, the Montgom ery County Defendants, Michelle Matthews and Hay, Doc. 

#37,

1 and the separate Motion to Dism iss, Doc. #38, filed by Hay. The Court has 

considered the “Answer to Defendants’ Motions to Dism iss” filed by Plaintiff, Doc. 

#42, and the replies filed by all Defendants, Docs. #44 and #47. 

Magistrate J udge Newm an has recom m ended that the Motions to Dism iss, 

Docs. #37 and #38, be granted, in part, and overruled, in part. 

1 In her Am ended Com plaint, Plaintiff incorporates by reference the “Statem ent of the 

Parties” and “Statem ent of Facts” from her Com plaint. Doc. #34, PAGEID##567 and 578; 

Doc. #2, PAGEID##2, 91-93, 98-137. The caption of the Am ended Com plaint is revised. 

This has created confusion as to whom are Defendants in the Am ended Com plaint. Tom 

Kelley and Michele Matthews are identified only in the caption of the Am ended Com plaint 

but are not m entioned further in this pleading. They are, however, nam ed as parties to 

the Motion to Dism iss, Doc. #37. The Report and Recom m endations do not m ention 

either of these individuals. Doc. #57. Additionally, neither Tom Kelley nor Michelle 

Matthews are parties to the Objections, Doc. #59.

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(1) Plaintiff’s § 1983 claim s are no longer part of this case; (2) 

Plaintiff’s claim s against MCDJ FS should be DISMISSED because it is 

not sui juris; (3) Plaintiffs’ claim s against Defendants in their 

individual capacities should be DISMISSED; and (4) Plaintiff’s Title VII 

claim s based on national origin discrim ination should be 

DISMISSED. However, the undersigned further concludes that 

Plaintiff’s Title VII race discrim ination and retaliation claim s asserted 

aga inst Defendants Hay, Good, Shaw, Mundy, and Myers in their 

official capacities (i.e., claim s actually asserted against her proper 

County em ployer, see supra ) should REMAIN PENDING.

Doc. #57, PAGEID##783-784. 

Based upon the above -m entioned pleadings and for the reasons set forth 

below, the Court adopts in part and rejects in part the Report and 

Recom m endations of Magistrate J udge Michael Newm an, Doc. #57. 

The Court will review, de novo, in accordance with Fed. R. Civ. P. 72, the 

objections filed by the Montgom ery County Defendants and Hay, Doc. #59, and 

the separate objections filed by Hay, Doc. #58.

I. Procedural and Factual Background 

Plaintiff’s pro se Am ended Com plaint, Doc. #34, was filed April 9, 2019, and 

incorporate s certain parties, facts, and claim s from her original Com plaint. 2

 The 

2 On February 1, 2018, pro se Plaintiff filed her Com plaint, Doc. #2, and all Defendants 

filed Motions to Dism iss, Doc. ##12 and 13. Plaintiff filed a m otion to am end her 

com plaint, Doc. #20, and Magistrate J udge Sharon Ovington issued a Report and 

Recom m endations, Doc. #29. On March 22, 2019, a Decision and Entry was filed adopting 

the Report and Recom m endations, in part, and declaring sam e m oot, in part, Doc. #33. 

Plaintiff’s m otion to am end her com plaint, Doc. #20, was sustained by the Court, Doc. 

#33.

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Am ended Com plaint nam es the following Defendants: (1) “Montgom ery County 

Children[‘s] Services Division;” (2) Hay, ”in her individual capacity” and in her 

“official capacity as a Court Review Specialist, Rank 1” for MCDJ FS and in her 

”official capacity as President of Professional Guild of Ohio (PGO) Council 12;” (3) 

Ronald Church, in his “individual capacity” and in his ”official capacity as 

Regional Supervisor of PGO[,] Council 12;” 3 (4) Good in her “ individual capacity”

and in her “official capacity as an Assistant Director” for MCDJ FS; (5) Myers in her 

“official capacity as Hum an Resources Coordina tor” for MCDJ FS; and (6) Shaw in 

her “ individual capacity” and in her “official capacity as District 2 

Manager/Supervisor for MCDJ FS.” Doc. #34, PAGEID#567, incorporating Doc. #2, 

PAGEID#91-93.4 The Am ended Com plaint alleges two claim s: Count I, “hostile 

work environm ent based on national origin” under Title VII, 42 U.S.C. § 2000e -

2(a), and, Count II, retaliation for engaging in protected activity under Title VII, 42 

U.S.C. § 2000e -3(a). 

3 Although Plaintiff has named Ronald Church as a Defendant in the Am ended Com plaint,

Doc. #34, PAGEID#567; Doc. #2, PAGEID#92, her prayer for relief requests that the Court 

“correct the caption by replacing the nam e Ronald Church with J ohn Doe.” Doc. #34, 

PAGEID#594. 

4 Although the Am ended Com plaint does not include Sandra Mundy as a Defendant, 

Plaintiff has listed her in the revised caption of the Am ended Com plaint indicating her job 

title as “Clerical Supervisor, Montgom ery County J ob and Fam ily Services, Children 

Services Division.” Doc. #34, PAGEID##565-567; Doc. #2, PAGEID#93. As such, she is 

nam ed in the Motion to Dism iss, referenced in the Report and Recom m endations and 

included in the Objections, Doc. ##37, 57 and 59. 

 

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According to the allegations in the Am ended Com plaint, Jones, an African 

Am erican wom an, was hired and reported to MCDJ FS, Children Services Division,

“under the job description of Secretary 1 (CS), grade PG05,” on May 16, 2016.

Doc. #2, PAGEID#102; Doc. #34, PAGEID#568. She was term inated “ the third week 

of J anuary 2017.” Id., PAGEID#133. As alleged by J ones, Hay is a white wom an, 

PGO Council 12 President 5, and a Court Review Specialist for MCDJ FS. 

On her first day of em ploym ent, Jones claim s that when she arrived at the 

Haines Children’s Center, which she refers to as the “MCCS,” “... she was pulled 

to the side by a black MCCS supervisor” and warned to “watch out for” Hay,

stating that she “...was a ‘backstabber’ ... was rude and had a habit of talking 

crazy to her coworkers.” Id., PAGEID#103. Myers, the Hum an Resources (“H.R.”) 

Coordinator at MCDJ FS, also spoke with Jones on her first day of work and 

essentially told her the sam e thing and added that, if there were any problem s 

with Hay, J ones should let her know. Id. Two days later, Jones m et Mundy, a 

supervisor of Mandated Services, who told her that Hay would be her trainer for 

her position, which J ones alleges was “Court Review Specialist, Rank 1.”

On Jones’s first day of job training, Hay told her “ to stay away from the 

black girls in the building because they did not like Hay and she did not want 

Jones to get involved with them and did not want them in her area.” Id., 

PAGEID#105. Hay also told J ones “not to go upstairs to get the m ail,” because 

5 Plaintiff’s Am ended Com plaint alleges that the PGO is “the [U]nion for Montgom ery 

County Departm ent of J ob and Fam ily Services, Children Services Division.”

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Diane William s, a black em ployee, was there and Hay did not like her and did not

want J ones talking to Diane William s. Id.

The Com plaint alleges that when Jones asked Hay questions, Hay would 

shout belittling rem arks at her. Hay told Jones not to help people who walked up 

to the desk asking for help, because those em ployees should send an em ail asking 

for assistance . Id., PAGEID##106-107. J ones alleged, however, that white coem ployees could walk up to the desk for help, but if the co-workers were black, 

Hay would “ run them off,” tell them that Jones was in training and that they 

should send Hay an em ail if they needed help. Id., PAGEID#107. Jones also 

alleged that during this period of training, because she was dependent on Hay,

intim idated by her and knew of her “power in the departm ent and division ....,” 

J ones began to develop “ severe anxiety” when she was requested to do 

som ething by Hay. Id. As a result of “the severe stress she was under” during the 

training period, she began suffering from skin peeling from her hands and a 

“ strange red rash.” Jones showed her hands to Mundy, telling her that this 

condition “was being treated as stress related.” Id. According to the Com plaint, 

every statem ent that J ones m ade to Mundy concerning Hay was m et with the 

response : “I don’t know why anyone hasn’t bought [brought legal] action about 

this[;] that’s why I keep m y attorney on speed dial.” Id., PAGEID#108. 

In J uly 2017, Hay went on m edical leave . Id., PAGEID##108 and109. During 

this tim e, Jones discovered that m ost of the alleged errors in her work, that Hay

was including in J ones’s official work record, were sim ply typographical errors.

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Id., PAGEID##109-110. She inform ed Mundy that the high num ber of her 

typographical errors was due to the distractions and events caused by Hay, and 

being in the sm all cubicles and under extrem e stress when in Hay’s presence . Id.,

PAGEID#110. Jones also has alleged that before Hay went on m edical leave, she 

failed to tell her how to log into and add data to a system (“SACWIS”) that Hay

had designed to track Jones’s work com pletion. When Good, Assistant Director of 

MCDJ FS, looked at the system to check on Jones’s progress, there was nothing to 

show how m uch work she had done. This prevented Good from tracking Jones’s 

progress and work perform ance. Id., PAGEID#108.

When Hay returned to work, she extended Jones’s probationary period and 

Jones’s rash im m ediately re turned. Id., PAGEID#111. Hay reviewed the entries 

into the SACWIS system that Jones and two other em ployees had m ade. One of 

the three em ployees, J ane Kidwell, was white and J ones alleges that Hay made 

“sm all, subtle m arks” on Kidwell’s work, but that when Hay reviewed J ones’s

work, Hay made “big bright m arks on the paper with a hot pink m arker.” Id., 

PAGEID#112. Hay m ade even bigger m arks on the work of Clarissa Gresham , a 

black em ployee, and Hay told Mundy that she would need to correct all of 

Gresham ’s work. Id.

With respect to SACWIS, J ones has alleged that she realized that it was Hay

who caused, and in som e instances created, her errors. Id., PAGEID#114. Hay did 

not train her on how entries on the different docum ents were to be m ade and,

instead, would give her conflicting instructions about m aking entries into the 

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SACWIS system . Id., PAGEID#114. When Jones followed Hay’s instructions and

inputted inform ation into SACWIS, Hay would then m ark it wrong on the 

document and would give it back to her. At som e point, Hay would then give the 

docum ent to Mundy, supervisor of Mandated Services, who reviewed it and 

returned it to Jones “with a note that said either Mundy was disappointed in all 

the errors or that Jones was im proving.” Id., PAGEID#115. The cycle would 

continue with J ones re -entering inform ation as Hay instructed, Hay marking it 

“wrong” and giving it to Mundy, who then returned it to Jones to correct. Doc. 

#34, PAGEIE#572-573. The Com plaint alleges that when Jones would ask Hay a 

question about how to enter inform ation into SACWIS, “Hay would yell ‘I told you 

three tim es how to do that’ but never was Jones told why it m ust be done that 

way.” Id., PAGEID#118. Jones characterizes Hay’s conduct as “obnoxious and 

loud.” Id. During her training period, a white wom an heard Hay’s com m ents to 

Jones, and asked Plaintiff “Why do you let J ane [Hay] berate you that way.” Doc. 

#34, PAGEID#576.

Jones’s work environm ent “continued to get progressively worse during 

the close of [2016].” Id., PAGEID#106. When Jones returned from lunch, Hay

would run to her cubicle , sniff Jones and tell her to remove her sunglasses. Id. On 

one occasion, Hay asked Jones why her eyes were red and when told that it was 

due to allergies, Hay began to tell her “what would happen if a person were 

presum ed to be high at work” and said it in a way that she felt threatened. Id.

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

functions that the black wom en em ployees would have throughout the year, . . .

she (Hay) would not do anything to help any of ‘those heifers.’” Id., PAGEID#122; 

Doc. #34, PAGEID#576. Hay would also walk around the building and talk loudly 

“about black wom en’s attire.” Doc. #34, PAGEID#576. J ones also alleges that 

“black m ale em ployees stee red clear” of Hay because she had m ade “sexual 

advances towards a black m ale em ployee and when he reciprocated,” she filed a 

“sexual harassm ent lawsuit” and got him fired. Id., PAGEID#577. 

The Com plaint alleges that in Decem ber 2016, Hay told Mundy that Jones

was m aking too m any errors “and that she did not think that Jones could grasp 

the work.” Doc. #2, PAGEID#120. Around this tim e, Jones told Mundy that Hay

was sabotaging her work by changing it and gave Mundy documents that 

allegedly exposed Hay’s sabotage. 

J ones has alleged that Hay would not allow her to m ake it through her 

probationary period and that “ there was only enough work for two individuals in 

that division in the position of Court Review Specialist[,] Rank 1, and [that]Jones

would not be one of those individuals.” Id., PAGEID#126. Jones claim s that in

J anuary 2017, she “discovered that Hay had [done] the sam e exact thing to two 

other black fem ales ... training on [the] SACWIS system . One [of the individuals]

quit and the other was term inated....” Id., PAGEID126. The Com plaint alleges that 

towards the end of J ones’s probationary period, she learned that the position in 

which she was working as a probationary em ployee had been reclassified, the 

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“pay scale raised” and tha t a white em ployee (Shannon Kidwell) from another 

departm ent was “returning” to the job now that it was reclassified. J ones claim s 

that “her only purpose was to serve as a temp until political m oves were m ade to 

m ove a properly trained individual into the position that was sought by Plaintiff.” 

Id., PAGEID#124. Doc. #34, PAGEID##571 and 575. 571

Jones went to various people at MCDJ FS for assistance regarding the 

problem s she was having with Hay. These people included Mundy, a long with

Debra Robinson, the Vice President of the Union, and Myers, the H.R. Coordinator.

J ones also alleges that she spoke with Ronald Church, a Regional Supervisor of 

the PGO. Jones alleges in her Com plaint that she later told Myers to leave the 

issues concerning Hay alone. Jones then went to see Shaw, the District 2 Manager 

and Supervisor, and explained to her the pressure she was under due to Hay. 

Jones showed Shaw the rash on her hands and told Shaw that it cam e from the 

stress of having to work with Hay. Additionally, J ones told her that Hay has 

created a “hostile work environm ent” and that Mundy, Hay’s supervisor, failed to 

take rem edial action. J ones told Shaw that she was being im properly trained, that 

she was given nothing to review or study and that all the inform ation cam e 

directly from Hay who, by that tim e, “had racial bias on full display.” Shaw 

dism issed J ones’s “accusations and sent her back to work.” Id., PAGEID##131-32.

On J ones’s last day of em ploym ent at MCDJ FS, the third week of J anuary 

2017, Shaw cam e to her, after everyone had left for the day, and asked her to 

come to H. R. Id., PAGEID#133. J ones did so and m et with a “tribunal” which 

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included Good and Shaw. Id., PAGEID#134. Jones was escorted back to her work 

area and told to gather her belongings. Id. She was not allowed to keep the work 

she had developed to help her m ake entries into SACWIS. According to J ones, 

“[T]he written appraisals subm itted by Defendant Mundy and Hay were used to 

place Plaintiff on Adm inistrative Leave with pay...” Id., PAGEID#135. Jones has 

also alleged that MCDJ FS retaliated against her for going to the Union. Id., 

PAGEID#136. She was term inated on February 3, 2017. Doc. #38, PAGEID#655.

J ones filed for and received unem ploym ent com pensation. She filed a 

discrim ination charge with the Ohio Civil Rights Com m ission (“OCRC”) and the 

Equal Em ploym ent Opportunity Com m ission (“EEOC”) on March 15, 2017. Id. In 

her charge, Plaintiff stated that she was discrim inated against due to “Race /Color

African Am erican” and age [,] and was the subject of retaliation for having gone to 

the union. She also claim ed a hostile work environm ent and that she was 

discharged. Doc. # 38, PAGEID#655. Her charge was dism issed by the OCRC on 

Septem ber 28, 2017, Doc. #38, PAGIED# 656-657, and she received her right to sue 

letter from the EEOC dated Novem ber 3, 2017. Doc. #38, PAGEID#654. 

II. Standard of Review 

Pursuant to 28 U.S.C. § 636(b)(1), this Court m ust m ake a de novo

determ ination of those portions of the Report and Recom m endations to which an 

objection is m ade. The Court m ay accept, reject, or m odify, in whole or in part, the 

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m agistrate judge’s findings, m ay receive further evidence, or recom m it the m atter 

to the magistrate judge with instructions. Id. See also Fed. R. Civ. P. 72 (b)(3). 

Federal Rule of Civil Procedure 8(a) provides that a com plaint m ust contain 

“a short and plain statem ent of the claim showing that the pleader is entitled to 

relief.” The com plaint m ust provide the defendant with “fair notice of what the

. . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twom bly, 

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal 

of a com plaint on the basis that it “fail[s] to state a claim upon which relief can be 

granted.” The m oving party bears the burden of showing that the opposing party 

has failed to adequately state a claim for relief. DirecTV, Inc. v. Treesh, 487 F.3d 

471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 

1991)). The purpose of a m otion to dism iss under Rule 12(b)(6) Ais to allow a 

defendant to test whether, as a m atter of law, the plaintiff is entitled to legal relief 

even if everything alleged in the com plaint is true.@ Mayer v. Mylod, 988 F.2d 635, 

638 (6th Cir. 1993). In ruling on a 12(b)(6) m otion, a court must “construe the 

com plaint in the light m ost favorable to the plaintiff, accept its allegations as true, 

and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of 

Mem phis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Tree sh, 487 F.3d at 476). 

Nevertheless, to survive a m otion to dism iss under Rule 12(b)(6), the 

com plaint m ust contain “enough facts to state a claim to relief that is plausible on 

its face.” Twom bly, 550 U.S. at 570. Unless the facts alleged show that the

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plaintiff’s claim crosses “the line from conceivable to plausible, [the] com plaint 

m ust be dism issed.” Id. Although this standard does not require “detailed factual 

allegations,” it does require m ore than “labels and conclusions” or “a form ulaic 

recitation of the elem ents of a cause of action.” Id. at 555. ARule 8 . . . does not 

unlock the doors of discovery for a plaintiff arm ed with nothing m ore than 

conclusions.@ Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Legal conclusions 

Amust be supported by factual allegations@ that give rise to a plausible inference 

that the defendant is, in fact, liable for the m isconduct alleged. Id. at 679. 

III. Report and Recom m endations, Doc. #57

Before analyzing the objections filed by the Montgom ery County 

Defendants and Hay, Doc. #59, and the separate objections filed by Hay, Doc. #58, 

the Court will review the recom m endations m ade by the Magistrate J udge in the 

Report and Recom m endations, Doc. #57. 

A. Plaintiff’s § 1983 claim s and MCDJ FS 

The Report and Recom m endations, Doc. #57, “concludes that (1) Plaintiff’s 

§ 1983 claim s are no longer part of this case .” Id., PAGEID##777 and 783. Because

Plaintiff’s § 1983 claim was not pled or incorporated into the Am ended Com plaint,

Doc. #34, Drake v. City of Detroit, Mich., 266 F. App’x 444, 448 (6th Cir. 2008) (an 

am ended com plaint supercedes a prior com plaint), the Court adopts this 

recom m endation. The Court also adopts the recom m endation of the Magistrate 

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J udge that the MCDJ FS, the alleged em ployer of Plaintiff and Defendants, must 

be dism issed because it is not sui juris.

6

 Id., PAGEID#783. 

B. Title VII Claim s of National Origin and Racial Discrim ination 

With respect to Count I of the Am ended Com plaint, the Magistrate J udge 

recommends that Plaintiff’s Title VII claim “based on national origin

discrim ination” should be dism issed because Plaintiff failed to exhaust her 

adm inistrative rem edies. Doc. #57, PAGEID#784. Federal courts can hear only 

Title VII claim s that have been asserted in a charge m ade to the Ohio Civil Rights 

Com m ission, the Equal Em ploym ent Opportunity Com m ission, or claim s that “can 

be reasonably expected to grow out of” such adm inistrative charges, Strouss v. 

Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001). Because no such charge of 

national origin discrim ination was made by Plaintiff to the adm inistrative bodies, 

nor is any such charge expected to grow out of what is alleged, the Court adopts 

the Magistrate J udge’s recom m endation.

Based on the allegations of the Am ended Com plaint, the Magistrate J udge 

further recom m ends that Counts I and II should be classified as Title VII claim s 

based on discrim ination due to race a s Plaintiff has alleged, and not “national 

6 As a departm ent or agency within the Montgom ery County governm ent, the MCDJ FS 

lacks the capacity to be sued in its own nam e and, as such, is “sui juris.”

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origin.” Doc. #57, PAGEID#782. The Court will analyze this recom m endation 

below. 

1. Count I, Race -Based Hostile Work Environm ent 

Count I of the Am ended Com plaint alleges a Title VII claim for a hostile 

work environm ent based on national origin. The Magistrate J udge indicated that 

this was, in reality, a claim for a hostile work environm ent based upon race. It is 

well-established, under Title VII, that an em ployee has a cause of action when an 

em ployer m aintains a hostile work environm ent. Harris v. Forklift Sys., Inc., 510 

U.S. 17, 21 (1993) (“requiring people to work in a discrim inatorily hostile or 

abusive environm ent” violates Title VII). Evidence of a hostile work environm ent 

exists when “the workplace is perm eated with ‘discrim inatory intim idation, 

ridicule and insult ...’” Harris, 510 U.S. at 21 (1993) (quoting Meritor Savings Bank, 

FSB v. Vinson, 477 U.S. 57, 65 106 S.Ct. 2399, 2405). 

To establish the existence of a hostile work environm ent under Title VII, a 

plaintiff m ust show that: “(1) she is a m em ber of a protected class; (2) she was 

subjected to unwelcom ed racial harassm ent; (3) the harassm ent was race [-]

based; (4) the harassm ent unreasonably interfered with her work perform ance by 

creating an environm ent that was intim idating, hostile, or offensive; and (5) [the] 

em ployer [is liable].” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 

2007).

Plaintiff’s Am ended Com plaint alleges that on her first day of job training, 

Hay, a white wom an, told her “ to stay away from the black girls in the building 

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because they did not like Hay and she did not want Jones to get involved with 

them and did not want them in her area.” Doc. #2, PAGEID#105. Plaintiff’s 

Am ended Com plaint also alleges that Hay would assist white em ployees who 

needed help but if a black co-em ployee sought help from Plaintiff, Hay would “ run 

them off” and tell them that Jones was in tra ining and that they should send Hay 

an em ail if they needed help, Id., PAGEID##106-107. Plaintiff also alleges that Hay 

referred to Plaintiff’s black co-workers as “heifers,” and that while walking 

through the office , com m ented loudly about the attire of the black co-workers. 

The Am ended Com plaint also alleges that Hay would berate Plaintiff in front of 

others and that she was sabotaging Plaintiff’s work by changing it in the SACWIS 

system after she had correctly entered it. Plaintiff com plained about Hay to 

Mundy, Hay’s supervisor, and Shaw, a m anager and supervisor. 

The Magistrate J udge has properly construed the allegations in the 

Am ended Com plaint to be those of a racially hostile work environm ent under Title 

VII. Accordingly, the Court adopts the recom m endation that Count I should be 

reclassified to allege a hostile work environm ent based on race and not national 

origin. 

2. Count II, Retaliation Based on Plaintiff’s Claim s of Racial 

Discrim ination and Harassm ent 

 

Plaintiff’s second claim in her Am ended Com plaint alleges that she 

“engaged in protected activity when she com plained about discrim ination and 

harassm ent based on national origin” and that “[I]n retaliation for” her 

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com plaints, “she was unjustly term inated from her position.” Doc. #34, 

PAGEID#591. In the Report and Recom m endation, the Magistrate J udge indicated 

that based upon the allegations of the Am ended Com plaint, Count II was a claim 

for retaliation based on Plaintiff’s com plaints of racial discrim ination and 

harassm ent. To state a claim of retaliation under Title VII, Plaintiff m ust allege 

that: (1) she acted in a m anner protected by Title VII; (2) Defendants knew of that 

exercise of protected activity; (3) Defendants subsequently took an adverse action 

against Plaintiff; and (4) the adverse action had a causal connection to the 

protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 126 

S. Ct. 2405, 2415 (2006).

A plaintiff's burden to establish a m aterially adverse em ploym ent action is 

less onerous in the retaliation context than in the anti-discrim ination context. Id. 

Any action that “m ight have dissuaded a reasonable worker from m aking or 

supporting a charge of discrim ination” is a m aterially adverse em ploym ent action 

in the re taliation context. Id. 

Plaintiff’s Title VII retaliatory conduct claim consists of alleging that she 

com plained about Hay to her union representative, Debra Robinson, and told 

Shaw that Hay had created a “hostile work environm ent.” Plaintiff further alleges 

that she told Shaw that she, Plaintiff, had com plained to Hay’s supervisor, Mundy, 

but that she took no action. Allegedly Shaw “dism issed the Plaintiff’s accusations 

and sent [her]back to work.” Doc. #34, PAGEID#587. Approxim ately one week 

later, Shaw, along with Good and a third person from H.R., m et with Plaintiff and 

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placed her on adm inistrative leave. Plaintiff’s Am ended Com plaint alleges that 

she was ultim ately term inated by MCJ FS “for attem pting to bring com plaints 

against the President of the Union[Hay]. . .” and “[I]n retaliation for 

[her]com plaints to the Union representative[Debra Robinson].” Doc. #34, 

PAGEID##589 and 591. 

The Magistrate J udge has properly construed Count II of the Am ended 

Com plaint to be a Title VII claim of retaliation based on Plaintiff’s com plaints of 

racial discrim ination and harassm ent. Accordingly, the Court adopts the 

recom m endation of the Magistrate J udge that Count II should be reclassified to 

allege a Title VII claim of retaliation based on race and not national origin. 

C. Individual Liability Claim s Against Defendants Hay, Good and Shaw 

The Am ended Com plaint alleges individual liability against Hay, Good and 

Shaw. The Magistrate J udge has recom m ended that Plaintiff’s Title VII “ claim s 

against Defendants in their individual capacities should be dism issed.” Doc. #57, 

PAGEID##778 and 783-84. As explained in the Report and Recom m endations, 

“Plaintiff sets forth no factual allegations in her Am ended Com plaint upon which 

the Court could plausibly conclude that any of the individual Defendants are 

‘em ployers’ for purposes of Title VII.”

Under Title VII, an “em ployer” is defined as “a person engaged in an 

industry affecting com m erce who has fifteen or m ore em ployees ... and any agent 

of such person.” 42 U.S.C. § 2000e(b). Although Title VII does not define “agent,” 

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the Court of Appeals has inte rpreted it to m ean “an individual who ‘serves in a 

supervisory position and exercises significant control over the plaintiff's hiring, 

firing or conditions of em ploym ent.’” Wathen v. General Electric, 115 F.3d 400, 

405 (6th Cir.1997)) (citing Pierce v. Com m onwealth Life Ins. Co., 40 F.3d 796, 803 

(6th Cir.1994), abrogated on other grounds by Carter v. Toyota Tsusho Am erica, 

Inc., 529 Fed Appx. 601(6th Cir. 2013)). The Sixth Circuit unam biguously holds that 

no personal liability exists under Title VII unless the individual 

em ployee/supervisor qualifies as an em ployer. Little v. BP Exploration & Oil Co.

265 F.3d 357, 362 (6th Cir.2001)(“The law in this Circuit is clear that a supervisor 

who does not otherwise qualify as an em ployer cannot be held personally or 

individually liable under Title VII”); Wathen, 115 F.3d at 404-05 (6th Cir. 1997).

Plaintiff’s Am ended Com plaint, however, alleges a “cat’s paw” theory of 

liability as to Hay. According to the Am ended Com plaint, Hay, a “co-worker” and 

her “ trainer,” “sabotaged” Plaintiff’s work by giving her incorrect instructions as 

to how to input inform ation into SACWIS. Hay would m ark Plaintiff’s work wrong, 

give it back to her and then give the docum ent to Mundy, the supervisor of 

Mandated Services, who reviewed it and returned it to J ones. “The cycle would 

continue with J ones re -entering inform ation as Hay instructed, Hay marking it 

‘wrong’ and giving it to Mundy, who then returned it to Jones to correct.” Doc. 

#34, PAGEIE#572-573. The actions and bias es of the interm ediate em ployee who 

engages in conduct that sabotages the perform ance of a co-worker are attributed 

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to the em ployer. Staub v. Proctor Hosp., 562 U.S. 411,131 S. Ct. 1186 (2011).7

Cobbins v. Tenn. Dep't of Transp., 566 F.3d 582, 586 n. 5 (6th Cir.2009) (“The ‘cat's 

paw’ theory refers to a situation in which a biased subordinate, who lacks 

decision[-]m aking power, influences the unbiased decisionm aker to m ake an 

adverse ... decision, thereby hiding the subordinate's discrim inatory intent.) Id., 

see also, Arendale v. City of Mem phis, 519 F.3d 587, 604 n. 13 (6th 

Cir.2008)(quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 

(6th Cir.1998) (“[T]he discrim inatory rem arks of those who m ay have influenced 

the decision not to reassign the plaintiff to other positions in the com pany m ay be 

relevant when the plaintiff challenges the m otive behind that decision.”)). Even if 

such a theory is applicable, liability would attach only to the em ployer and not to 

the interm ediate em ployee.

In this case, the Am ended Com plaint does not plead sufficient facts to find 

that Hay, Good or Shaw are em ployers or “agents” of an em ployer under Title VII 

so that they are liable in individual capacities. Moreover, although Plaintiff has 

alleged a cat’s paw theory of liability against Hay due to her alleged sabotaging of 

Plaintiff’s work, this theory of liability attaches to the em ployer and does not 

create individual liability. 

7 Id., n.1 for a fuller explanation of the term , “cat’s paw.” 

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Accordingly, the Court adopts the recom m endation that the Am ended 

Com plaint fails to plead sufficient facts to establish liability against Hay, Good or 

Shaw in their individual capacities. 

IV. J oinder of Plaintiff’s Em ployer 

Although no individual liability exists under Title VII unless an em ployee or 

supervisor qualifies as an em ployer, vicarious liability exists for an em ployer for 

an actionable hostile environm ent created by a supervisor with “ im m ediate or 

successively higher authority” over the allegedly victim ized em ployee . Burlington 

Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), and Faragher v. City of Boca 

Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998). As such, em ployer liability exists for a 

hostile work environm ent claim without establishing that the em ployer is 

negligent or otherwise at fault for the supervisor's actions. Burlington Industries, 

Inc., 524 U.S. at 765. 

The Court has adopted the recom m endation that MCDJ FS, the entity that 

Plaintiff alleges is her em ployer, is not sui juris. However, the Court, like the 

Magistrate J udge, agrees that “[I]t is incum bent on the court to take appropriate 

m easures to perm it the adjudication of pro se claim s on the m erits, rather than to 

order their dism issal on technical grounds,” Friedm an v. Cam pbell, No. 98-6728, 

199 WL 1045281, at *1 (6th Cir. Nov. 8, 1999), and to “construe the com plaint in 

the light m ost favorable to the plaintiff, accept its allegations as true, and draw all 

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reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Mem phis, 

695 F.3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487 F.3d at 476). 

Because Plaintiff’s Am ended Com plaint evinces a clear intent to sue her 

em ployer, the Court will strike MCDJ FS as Plaintiff’s alleged em ployer in the 

Am ended Com plaint and substitute Montgom ery County as the em ployer and a 

Defendant in this litigation.

V. Objections of the Montgom ery County Defendants and Defendant Hay as an 

Em ployee of MCDJ FS, Doc. #598 

 

The Montgom ery County Defendants and Hay have asserted two objections 

to the Report and Recom m endations: (1) the “official capacity” claim s alleged 

against them under Title VII should be dism issed; and (2) Myers should be 

dism issed from this litigation. The Court will address each objection separately.

A. First Objection – Title VII Race -Based Hostile Work Environm ent and 

Retaliation Claim s Alleged Against Defendants Hay, Good, Shaw, 

Mundy and Myers in Their Official Capacities Should Rem ain Pending 

 

The Magistrate J udge has recom m ended that Plaintiff’s Title VII race -based 

hostile work environm ent and retaliation claim s asserted against Defendants Hay, 

Good, Shaw, Mundy, and Myers in their official capacities should rem ain pending. 

In their first objection, the Montgom ery County Defendants and Defendant Hay, as 

an em ployee of the MCDJ FS, assert that although the Magistrate J udge properly 

8 The objections are filed by the MCDJ FS, the Montgom ery County Defendants and Hay in 

her capacity as an em ployee of MCDJ FS, Doc. #59. 

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dism issed the Title VII claim s alleged against them in their “individual capacities,” 

the Report and Recom m endations incorrectly failed to dism iss Plaintiff’s Title VII 

claim s against them in their “official capacities.”

Plaintiff’s Am ended Com plaint has alleged that Defendants Hay, Good, 

Myers and Shaw are liable in their “official capacities” for the Title VII race -based 

hostile work environm ent and retaliation claim s. An “official-capacity suit is, in all 

respects other than nam e, to be treated as a suit against the entity.” Kentucky v. 

Graham , 473 U.S. 159, 166 105 S.Ct. 3099, 3105 (1985) (citation om itted). A claim 

against the defendant in his official capacity is not a suit against the official 

personally, for the real party in interest is the entity. Id.9

The Magistrate J udge recom m ends that the claim s “against Hay, Good, 

Shaw, Mundy[,] and Myers in their official capacities“ should rem ain pending. 

Doc. #57, PAGEID#784. The Report and Recom m endations states that the se 

claim s should rem ain since the prayer for relief “ seeks com pensatory dam ages 

against MCDJ FS only, the undersigned liberally construes the pleadings -- as the 

Court is required to do -- and finds that Plaintiff’s claim s against the individually 

nam ed Defendants are, in fact, Title VII claim s asserted against them in their 

9 Plaintiff has not alleged that Hay, Good, Myers or Shaw had significant control over 

hiring, firing and working conditions such that they could be the alter ego of the 

em ployer. Little v. BP Exploration & Oil Co. 265 F.3d 357 at 362 n. 2 (6th Cir.2001)(“While 

the law is clear that a supervisor cannot be held liable in his or her individual capacity for 

violations of Title VII, there is support for the proposition that a supervisor m ay be held 

liable in his or her official capacity upon a showing that he or she could be considered the 

“alter ego” of the em ployer.”)

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official capacities, i.e., against their em ployer.” Doc. #57, PAGEID#778. The 

Magistrate J udge cites to Wilson v. Nutt, No. 96-6683, 1998 WL 30813, at *3 (6th 

Cir. J an. 22, 1998) (“When a person says he [or she] is suing a public official in 

his [or her] ‘official capacity,’ that term is being utilized as shorthand for the 

governm ent agency to which the plaintiff is looking for recovery.”) Doc. #57, 

PAGEID#778.

Because an official capacity suit is treated as a suit against the entity, 

Kentucky v. Graham , 473 U.S. at 166, Plaintiff’s claim s against Hay, Good, Myers 

and Shaw in their official capacities are unnecessary now that Montgomery 

County, Plaintiff’s em ployer, is joined as a Defendant. Accordingly, the Court 

rejects the recom m endation that Title VII liability exists for Hay, Good, Myers and 

Shaw in their official capacities and sustains the first objection of the 

Montgom ery County Defendants and Hay.

B. Second Objection – Plaintiff’s Title VII Race-Based Hostile Work 

Environm ent and Retaliation Claim s Alleged Against Defendant Myers in 

Her Official Capacity 

 

Although the Magistrate J udge recom m ended that Plaintiff’s Title VII race -

based discrim ination and retaliation claim s rem ain pending against Defendants 

Hay, Good, Shaw, Mundy and Myers in their official capacities, the Court has 

joined Plaintiff’s em ployer, Montgom ery County, to this lawsuit and has rejected 

the Magistrate J udge’s recom m endation. The second objection of the 

Montgom ery County Defendants and Hay is that the Magistrate J udge incorrectly 

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included Myers as a Defendant despite Plaintiff’s statem ent in her prayer for relief 

that this Defendant be dism issed. This objection requests dism issal of Defendant 

Myers. 

(g)Plaintiff further request[s] this Honorable Court to correct the 

caption by replacing the nam e Ronald Church with J ohn Doe until 

discovery can be had for this individual[’]s correct nam e. Plaintiff 

further m oves the Court to dism iss the action against Defendant 

Deansai Myers and rem ove her nam e from the caption.

Doc. #34, PAGEID#594.

In sustaining the first objection of the Montgom ery County Defendants and 

Hay, the Court has also, in effect, sustained the second objection of these 

Defendants. Accordingly, Myers is dism issed as a Defendant.

Additionally, although not part of these objections, Defendant Ronald 

Church is nam ed as a Defendant in the Am ended Com plaint in his individual and 

official capacity. Doc. #34, PAGEID#PAGEID#567; Doc. #2, PAGEID#92. In her 

prayer for relief, however, Plaintiff requests that this Court “correct the caption by 

replacing the nam e Ronald Church with J ohn Doe until discovery can be had for 

this individual’s correct nam e. Accordingly, Defendant Ronald Church is 

dism issed from this lawsuit and J ohn Doe is substituted as a defendant.

 

 

 

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VI. Separate Objections of Hay, Doc. #5810 

Defendant Hay asserts three separate, but related, objections to the Report 

and Recom m endations: (1) Plaintiff’s Title VII claim s were not tim ely filed under 

the relation back doctrine; (2) the Report and Re com m endations did not consider 

whether there was “good cause ” to excuse Plaintiff’s noncom pliance with the 90-

day lim itations period for filing Title VII claim s of race discrim ination and

retaliation; and (3) the relation back doctrine did not apply under the 

circum stances of this case. 

The essence of Hay’s argum ent is that Plaintiff’s tim ely filed EEOC charge 

was for “race/color,” age, retaliation and hostile work environm ent. Because her 

right to sue letter was dated Novem ber 3, 2017, any com plaint alleging Title VII 

claim s had to be filed within 90 days or on or before February 1, 2018.11 Because 

the failure to file within the ninety-days is evaluated in the sam e m anner as a 

failure to file within a statute of lim itations, Truitt v County of Wayne , 148 F.3d 

644, 646-647 (6th Cir. 1998), Plaintiff’s Title VII claim s, which she asserts for the 

10 In addition to Hay being sued in her individual capacity and in her “official capacity as a 

Court Review Specialist, Rank 1” for the MCDJ FS, which the Court has previously 

addressed in this Decision and Entry, she is also sued in her “official capacity as President 

of the PGO Council 12.” Doc. #2, PAGEID#91; Doc. #34, PAGEID#567. Although not 

expressly stated in the Report and Recom m endations, Hay is not liable in this capacity 

under Title VII since no em ploym ent relationship was pled. 

11 Hay notes that Plaintiff did, in fact, tim ely file her Com plaint alleging violations under 41 

U.S.C. § 1981a, 42 U.S.C. § 1983 and for intentional infliction of em otional distress, on 

February 1, 2018, albeit not for com plaints alleged in the EEOC com plaint of 

discrim ination based upon “race/color,” age, retaliation and hostile work environm ent.

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first tim e in her Am ended Com plaint, are barred unless they relate back to the 

filing of her Com plaint.

Fed. R. Civ. P. 15(c)(1)(B), however, perm its the relation back of Plaintiff’s 

Am ended Com plaint to the date of the filing of her initial Com plaint “when . . . the 

am endm ent asserts a claim or defense that arose out of the conduct, transaction, 

or occurrence set out -- or attempted to be set out -- in the original pleading.” Fed. 

R. Civ. P. 15(c)(1). The Report and Recom m endations cited Caim ona v. Ohio Civil 

Serv. Em ployees Ass’n, No. 4:18CV785, 2018 WL 6386023, at *3 (N.D. Ohio Dec. 6, 

2018) (citing Lockhart v. Holiday Inn Exp. Southwind, 531 F. App’x 544, 548). 

Although Hay is correct that Lockhart pertains to Rule 15(c)(1)(C), this Court 

agrees with the Magistrate J udge that the relation back of Plaintiff’s Title VII 

claim s to the date of the filing of the initial Com plaint is perm issible in this case. 

Rule 15(c) is “‘based on the notion that once litigation involving 

particular conduct or a given transaction or occurrence has been 

instituted, the parties are not entitled to the protection of the statute 

of lim itations against the later assertion by am endm ent of defenses 

or claim s that arise out of the sam e conduct, transaction, or 

occurrence.’” U.S. ex rel Bledsoe v. Com m Health Sys., Inc., 501 F.3d 

493, 516 (6th Cir. 207) (quoting Brown v. Shaner, 172 F.3d 927, 932 

(6th Cir.1999)). 

Hall v. Spencer Cty., Ky., 583 F.3d 930, 934 (6th Cir. 2009)

In short, as stated by the Sixth Circuit, the issue is whether the party 

asserting the statute of lim itations defense has been put on notice “that he could 

be called to answer for the allegations in the am ended pleading.” Bledsoe , 501 

F.3d at 516. Based on the allegations in both the initial and Amended Com plaint, 

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there is no doubt that all Defendants were on notice that the Title VII allegations in 

the Am ended Com plaint related to prior allegations of racial discrim ination and 

retaliation which were alleged in the initial Com plaint. Therefore, Hay’s first 

objection is overruled. 

Hay’s second objection is whether “good cause” has been established “ to 

excuse Plaintiff’s noncom pliance with the 90-day lim itations period for filing Title 

VII claim s of race discrim ination and retaliation.” In support of this objection, Hay 

cites Lockhart, 531 F. App’x at 549. Lockhart, however, involved not only the 

relation back of an am ended com plaint to add a party and an analysis of Rule 

15(c)(1)(B), but also service of that new party under Fed. R. Civ. P. 4(m ). 

Specifically, the plaintiff’s Title VII claim had to be served on the added party and 

“served within 120 days after the [initial] com plaint is filed ... [or] the plaintiff 

shows good cause for the failure [to serve the added party within 120 days],” See

Fed. R. Civ. P. 4(m ). Id. at 548. There is no such requirem ent of a showing of 

“good cause” under Rule 15 (c)(1)(B). As such, Hay’s second objection is 

overruled. 

Finally, Hay argues that Plaintiff is required to satisfy “[B]oth (A) and (B)” of 

Fed. R. Civ. P 15 (c)(1) for the relation back doctrine to apply. Doc. #58, 

PAGEID#789. The Court does not agree. Nothing in the language of Fed. R. Civ. 

P. 15(c)(1), or in the case law interpreting sam e, requires both sections (A) and (B) 

to be satisfied before relation back can occur. 

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Rule 15(c)provides two m ethods by which an am endm ent alleging a 

new or different claim or defense m ay be allowed to relate back to 

the filing of the original com plaint and thus avoid an otherwise 

applicable statute of lim itations. The first m ethod appears in Rule 

15(c)(1)(A), which was added to the rule in 1991. . . The second 

m eans of determ ining when an am endm ent m ay relate back to the 

date of the original pleading appears in Rule 15 (c)(1)(B). 

6A Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and 

Procedure § 1497, at 76 (2010). 

Hay’s third objection is overruled.

VII. Conclusion 

For the reasons set forth above, the Court ADOPTS, in part, and REJ ECTS, 

in part, the Report and Recom m endations, Doc. #57, SUSTAINS the Objections of 

the Montgom ery County Defendants and Hay, Doc. #59, OVERRULES the separate 

Objections of Hay, Doc. #58, SUSTAINS, the Motion to Dism iss of the 

Montgom ery County Defendants and Hay, Doc. #37, and OVERRULES IN PART 

AND SUSTAINS IN PART the separate Motion to Dism iss of Hay, Doc. #38.12

MCDJ FS is stricken from the Am ended Com plaint as Plaintiff’s em ployer 

and Montgom ery County is substituted as the em ployer and a Defendant in this 

litigation.

Defendant, Deansai Myers, is dism issed as a Defendant.

12 Defendant Hay’s Motion to Dism iss, Doc. #38, is sustained as to the dism issal of claim s 

alleged against Hay individually, in her official capacity or as President of the PGO under 

42 U.S.C. §§ 1981 and 1983. Plaintiff’s claim of intentional infliction of em otional distress, 

set forth in the initial Com plaint but not in the Am ended Com plaint, is abandoned. The 

rem ainder of the Motion to Dism iss, Doc. #38, is overruled. 

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Defendant, Ronald Church, nam ed in the prayer for relief, is dism issed and 

J ohn Doe is substituted as a Defendant. 

As a result of this Decision and Entry, Plaintiff’s Am ended Com plaint 

alleges Title VII claims of race -based hostile work environm ent in Count I and 

retaliation based on racial discrim ination and harassm ent in Count II. The only 

Defendant in this litigation is Plaintiff’s em ployer, Montgom ery County. 

Da te: April 29, 2020

WALTER H. RICE

UNITED STATES DISTRICT J UDGE

/s/ Walter H. Rice (tp - per Judge Rice authorization after his review)

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