Demers v. Ohio Civil Rights Comm'n
| Docket Number | 2:23-cv-940 |
| Decision Date | 01 November 2023 |
| Parties | STEPHANIE B. DEMERS, Plaintiff, v. OHIO CIVIL RIGHTS COMMISSION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Defendants filed a Partial Motion to Dismiss the Second Amended Complaint (ECF No. 25), to which Plaintiff Stephanie Demers responded (ECF No. 26) and Defendants replied (ECF No. 27). Demers then moved for leave to file a sur-reply (ECF No. 28) and Defendants responded in opposition (ECF No. 29).
For the reasons that follow, both Motions are GRANTED in part and DENIED in part.
Demers argues that a sur-reply is necessary to respond to legal and factual arguments raised for the first time in Defendants' reply and to clarify that she has not brought a mixed-motive Equal Protection claim. (ECF No. 28.)
The Court has discretion to deny leave to file a sur-reply where the opposing party's reply did not raise new legal arguments or introduce new evidence. Modesty v. Shockley, 434 Fed.Appx. 469, 472 (6th Cir. 2011) (citing Seay v. Tenn. Valley Auth., 339 F.3d 454, 481-82 (6th Cir. 2003)). Defendants' reply brief did not raise new legal or factual arguments, it expounded on arguments raised in the Motion to Dismiss and provided counterpoints to arguments raised in Demers's response. This is the purpose of a reply brief and is no reason for filing a sur-reply.
As for her second reason for filing a sur-reply, Demers referenced both sex and age discrimination when discussing her Equal Protection claim in her response to Defendants' Motion to Dismiss. (ECF No. 26, PAGEID # 236.) Defendants seemingly took this to mean that her claim is partially based on age discrimination and made responsive arguments in their reply. (See ECF No. 27, PAGEID # 24951.) Demers seeks to clarify that her Equal Protection claim is not based on age discrimination. (ECF No. 28, PAGEID # 261.) Demers's request to abandon a mixed-motive Equal Protection claim via sur-reply is well taken.
Accordingly, Demers's Motion for Leave to File Sur-reply is GRANTED for the limited purpose of abandoning any Equal Protection claim based on age discrimination and DENIED in all other respects.
The following draws from the factual allegations in the Second Amended Complaint. Demers's allegations are considered as true for purposes of the instant motion, but her legal assertions are not. See Gavitt v. Born, 835 F.3d 623, 639-40 (6th Cir. 2016).
In 2014, Demers was hired as the Chief Legal Counsel for Defendant Ohio Civil Rights Commission (“the OCRC” or “the Commission”[1]). (¶ 11.) She was 48 years old and came to the position with extensive legal experience in the private and public sector, including ten years of experience representing the OCRC through the Office of the Ohio Attorney General. (¶ 12.)
From the start, Demers's responsibilities included advising the OCRC's five Commissioners, its Executive Director (her supervisor), and its central and regional office staff on regulatory amendments, policy decisions, and all legal matters. (¶ 13.) She was treated as part of the Commission's executive staff, meeting regularly with the Executive Director and participating in high-level decisions. (¶ 13.) Additionally, Demers supervised the OCRC's administrative law judge and the heads of the human resources and compliance departments. (¶ 14.) Demers was a trusted advisor and her work was well-regarded by the Commission, so much so that she was selected as interim Executive Director when her supervisor retired. (¶¶ 15, 16.)
All of this began to change when Defendant Angela Phelps-White was appointed as the Commission's Executive Director in March 2020. (¶ 18.) In Demers's first meeting with her, Phelps-White told Demers that she had “a difficult time working with women” and made disparaging comments about women she worked with in the past. (¶ 19.) Within a few months, Phelps-White started reducing Demers's status and responsibilities. (¶ 22.) Demers was no longer treated as a member of the executive staff, Phelps-White excluded her from meetings and forbade her from advising OCRC employees and other government agencies. (¶¶ 2730.) Phelps-White also stripped Demers of her supervisory authority over the heads of the human resources and compliance departments, effectively eliminating her involvement in employment decisions and her role in ensuring internal compliance with anti-discrimination laws. (¶¶ 23-24.)
While Demers's status and responsibilities were reduced, the responsibilities of a younger male employee (Desmon Martin) were expanded. (¶ 27.) Martin was the head of the compliance department and, although he had recently reported to Demers, Phelps-White positioned him as Demers's pseudo-replacement on the executive staff. (Id.) Phelps-White also had Martin assist with management-level hiring decisions, a duty previously performed by Demers. (¶ 36.) According to Demers, she was not the only woman whose duties were reallocated to younger male employees. (¶¶ 39-41.)
After observing this trend by Phelps-Whites, Demers began sharing her concerns about gender and age discrimination with others at the Commission, including one of the five active Commissioners, Defendant Lori Barreras. (¶ 43.) Commissioner William Patmon III was also aware of Demers's complaints. (¶ 52.) But neither Commissioner initiated an investigation, nor did they take remedial action against Phelps-White. (¶¶ 52-53.) Demers believes this inaction emboldened Phelps-White to retaliate against her for complaining. (¶¶ 54-55.)
On March 12, 2021, Phelps-White terminated Demers, stating that the legal department was going in a “different direction.” (¶ 47.)
None of Demers's successors have taken the legal department in a noticeably different direction. (¶ 51.) Demers's interim replacement was a younger and less experienced male, and, unlike with Demers, Phelps-White permitted him to freely communicate with the OCRC staff and perform the normal functions of Chief Legal Counsel. (¶ 49.) Nearly a year after Demers's termination, a substantially younger and less experienced female attorney was hired as her permanent replacement; this attorney left the Commission after less than a year and was replaced by another male attorney. (¶ 50.)
Within six months of her termination, Demers filed a charge of retaliation and gender and age discrimination with the Equal Employment Opportunity Commission. (¶ 59.) She received her right to sue letter on March 14, 2023, and timely filed the instant suit against the Commission, Phelps-White, and the OCRC Commissioners that were acting during the last two-years of her employment (collectively “the Commissioners”[2] and together with Phelps-White “the Individual Defendants”).
On Count I, Demers brings claims of sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) against the Commission. On Count II, she brings claims of age discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) against the Individual Defendants in their official capacities. And on Count III, she brings a gender discrimination Equal Protection claim and a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against the Individual Defendants in their official capacities and against Phelps-White, Barreras, and Patmon in their individual capacities.
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal alteration and quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Supreme Court has explained:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Defendants seek dismissal of Demers's retaliation claims and her Section 1983 claim for several reasons. Defendants first argue that Demers's Title VII and ADEA retaliation claims must be dismissed because she has failed to plead certain elements of her prima facie case. For her First Amendment retaliation claim, Defendants argue that claim fails because Demers does not allege that she engaged in constitutionally protected speech. Next, Defendants argue that Demers's individual capacity Section...
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