UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Tamera Brown, et al.,

Plaintiffs,

v.

City of Cincinnati, et al.,

Defendants.

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Case No. 1:18cv412

Judge McFarland

Magistrate Judge Litkovitz

Pending are motions for judgment on the pleadings filed by defendants City 

of Cincinnati, Mayor Cranley, Captain Pettis, Mr. Duhaney, Mr. Black, and Chief 

Isaac. (Docs. 37 and 38). The Magistrate Judge entered a Report and 

Recommendation (Doc. 50), recommending that the motions be granted. Plaintiffs

filed objections. (Doc. 53). Defendants hereby submit their response to the

objections. Defendants request that the Court overrule the objections, adopt the 

Report and Recommendation, grant the pending motions, and dismiss all claims.

I. Background

The Magistrate Judge’s recitation of the relevant facts (Doc. 50, PageID 626-

633) draws on the allegations set forth in plaintiffs’ 157-page second amended

complaint, over 130 pages of which consist of exhibits of internal complaints,

internal memoranda, investigation reports, and Ohio Civil Rights Commission

(OCRC) charges. (Doc. 23). To recap,

1 plaintiffs Tamera Brown and Joy Ludgatis are 

1 Specific paragraph references to the Complaint are not included here but are included in the 

Magistrate Judge’s Report and Recommendation (Doc. 50, PageID 626-633), as well as in defendants’

DEFENDANTS’

MEMORANDUM IN 

RESPONSE TO PLAINTIFFS’

OBJECTIONS TO REPORT 

AND RECOMMENDATION

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white female Cincinnati police officers who did not like the way their AfricanAmerican female supervisor, Lieutenant (now Captain) Danita Pettis, handled a

shots-fired incident at their police district; who complained internally about both 

the supervisor’s handling of the shots-fired incident and her “belligerently 

aggressive” treatment of them for “questioning her authority;” who were

subsequently transferred along with Lieutenant Pettis from that district with no 

loss of pay (or any alleged loss of rank or benefits) at the request of an officer who is 

not a defendant here; who did not assert in their internal complaints that race or

sex was a factor in the complained-of conduct; and who yet maintain that their

treatment constitutes a hostile work environment under Title VII and state law.

In their pleadings, plaintiffs also seek to overturn decades-old consent 

decrees addressing promotions within the department even though neither of them

ever sought promotions. They also assert they are the victims of a racial double 

standard who were denied permission to speak with media outlets because of their 

race, while attaching to their pleadings documents showing that their AfricanAmerican supervisor was also denied permission to speak with media outlets.

Plaintiffs claim entitlement to compensatory and punitive damages, injunctive

relief, and termination of the consent decrees.

II. Summary of the Magistrate Judge’s Recommendations

In her Report and Recommendation, the Magistrate Judge found defendants’

Rule 12(c) motions well taken under the applicable standard for review and 

initial memoranda in support of their motion for judgment on the pleadings. (Doc. 38, PageID 526-

532).

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recommended that their motions be granted. (Doc. 50). Specifically, she noted that

plaintiffs’ hostile work environment claims under Title VII and state law warranted 

dismissal because they failed to allege facts raising an inference that they were

treated unlawfully based on their race and sex; failed to allege facts showing that 

the complained-of conduct was sufficiently severe or pervasive; and failed to allege 

facts showing that any complained-of double standards in discipline or other terms 

of employment affected them personally. (Doc. 50, PageID 636-644).

Similarly, the Magistrate Judge found that plaintiffs’ retaliation claims 

under Title VII and state law failed as they failed to allege facts showing they 

engaged in any protected activity. (Doc. 50, PageID 644-647). The Magistrate Judge 

also found plaintiffs’ First Amendment claims to contain insufficient factual content 

to proceed beyond the pleadings stage as their internal complaints revolved around 

disputed personnel decisions and plaintiffs’ grievances against their supervising 

officer and not matters of public concern. (Doc. 50, PageID 647-651).

III. Standard of Review

The Magistrate Judge Act, 28 U.S.C. § 631 et seq., provides for de novo

review by the District Court of timely-filed objections to a Magistrate Judge’s report 

and recommendation. Objections must be specific, however. Generalized objections

that do not sufficiently “specify the issues of contention” do not satisfy that 

requirement. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Furthermore, 

objections “disputing the correctness of the magistrate's recommendation, but 

failing to specify the findings believed to be in error are too general and therefore 

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insufficient.” Stamtec, Inc. v. Anson, 296 Fed. Appx. 518, 520 (6th Cir. 2008), citing 

Miller at 380. In addition, restating prior arguments does not qualify as a proper 

objection. See, e.g., Holl v. Potter, No. C-1-09-618, 2011 U.S. Dist. LEXIS 104581 

(S.D. Ohio 2011), ¶ 3.

IV. Plaintiffs’ Objections

Plaintiffs’ objections focus on the trivial and immaterial and are little more 

than a rehash of their prior arguments. As such, they have already been adequately 

considered and disposed of by the Magistrate Judge under the correct controlling 

principles of law.

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A. Plaintiffs do not object to the Magistrate Judge’s key findings

with respect to their Title VII and state law claims

Plaintiffs do not object to the Magistrate Judge’s key findings that the

internal complaints they filed following the shots-fired incident and prior to their 

transfer did not mention race or sex as a motivating factor in their purportedly 

adverse treatment. With respect to the Magistrate Judge’s findings that their

purportedly adverse treatment was not sufficiently severe and pervasive as 

required under their chosen theories of recovery, plaintiffs object but only by 

maintaining, without any basis, that their allegations show the complained-of 

conduct was sufficiently “continuing in nature” to survive dismissal at this stage. In 

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

contention, they show just how correct the Magistrate’s analysis is. Hawkins

concerns a serial harasser at a brewery whose conduct towards his victims included 

“ongoing and continual” acts including graphic and sexually explicit comments, 

unwelcome physical contact, conducted repeatedly to the point where one of the 

victims “got sick of telling him to stop,” where the acts occurred not just on multiple 

occasions but seemingly “all the time” until they felt like a “campaign of 

harassment” culminating in the defendant allegedly setting fire to one victim’s car.

The Magistrate was correct in finding plaintiffs’ allegations to fall short of 

what is necessary to meet the severe-and-pervasive threshold, and furthermore, it is 

not for the Court to conjure missing objections on plaintiffs’ behalf or read more 

allegations into the pleadings than what plaintiffs have set forth. Plaintiffs’ hostile 

work environment and retaliation claims therefore warrant dismissal.

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B. Plaintiffs Want the Court to Speculate and Conjure Facts on 

Their Behalf

Plaintiffs have been afforded ample opportunity to formulate pleadings that 

allege an actual case or controversy. Yet, in their second amended complaint, in 

their briefing, and now in their objections to the Magistrate Judge’s Report and 

Recommendation, they continue to urge the Court to suspend the customary rules 

governing standing and injury. The Magistrate Judge very clearly pointed out to

plaintiffs that, in complaining of race-based policies that plaintiffs allege create a 

double standard for promotions, discipline, and other work conditions, plaintiffs fail

to show how those policies ever applied to them specifically. (Doc. 50, PageID 643).

In response, plaintiffs essentially point to “this tense and very important 

time in our nation’s history” as justification for giving them a pass on the customary 

requirement to show injury and standing. (Doc. 53, PageID 670). Remarkably, 

plaintiffs assert that, “given the current climate,” the Court should suspend the 

usual pleading standards and presume that allegations by white officers of 

“unprofessional conduct” on the part of African-American supervising officers are 

tantamount to allegations of “deeper matter [sic] racially motivated behavior which 

is of public concern [sic].” (Doc. 53, PageID 670). Plaintiffs’ view is untenable and 

their invitation should be rejected. The Magistrate Judge’s Report and 

Recommendation is based on firm precedent that plaintiffs largely do not challenge. 

Where they do attempt to do so, they cite to cases that instead show that the 

Magistrate is correct. For example, they cite to Handy-Clay v. City of Memphis, 695 

F.3d 531 (6th Cir. 2012) to argue that they were speaking as public citizens, not as 

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government employees, despite their own pleadings showing their engagement in 

the “quintessential employee beef” replete with statements “up the chain of 

command.” Id. at 540. Similarly, plaintiffs rely on Holbrook v. Dumas, 658 Fed. 

Appx. 280 (6th Cir. 2016) for the same proposition, but there as well the case works 

squarely against them. Id. at 288 (observing ordinary scope of plaintiff fire official’s

duties, the impetus for his speech, the setting, the audience, and the subject matter 

of the speech to determine the speech was not protected). Their objections fail to 

show how the Magistrate Judge erred in a manner that calls for rejection of her 

Report and Recommendation.

V. Conclusion

For the foregoing reasons, the Court should adopt the Magistrate Judge's 

Report and Recommendation and dismiss defendants from this action.

Respectfully submitted,

ANDREW W. GARTH (0088905)

INTERIM CITY SOLICITOR

s/ Shuva J. Paul

Shuva J. Paul (0088484)

801 Plum Street, Suite 214

Cincinnati, Ohio 45202

(513) 352-4551

shuva.paul@cincinnati-oh.gov

Trial Attorney for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on October 1, 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/ Shuva J. Paul

Shuva J. Paul (0088484)

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