Edelstein v. Judge Greg Stephens, Case No. 1:17cv305

• Decision Date: 31 March 2018
• Docket Number: Case No. 1:17cv305
• Parties: Kimberly Edelstein, Plaintiff, v. Judge Greg Stephens, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Kimberly Edelstein, Plaintiff, v. Judge Greg Stephens, et al., Defendants.

Case No. 1:17cv305

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 31, 2018

Judge Michael R. Barrett

OPINION & ORDER

This matter is before the Court upon the Magistrate Judge's February 16, 2018 Report and Recommendation ("R&R") (Doc. 31). Also before the Court is Plaintiff's Motion for Oral Argument. (Doc. 37).

The parties were given proper notice pursuant to Federal Rule of Civil Procedure 72(b), including notice that the parties would waive further appeal if they failed to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947, 949-950 (6th Cir. 1981). Plaintiff filed objections to the R&R. (Doc. 36). Defendants filed a Response to Plaintiff's objections. (Doc. 39).

Pursuant to S.D. Ohio R. Civ. 7.1(b)(2), oral argument is not "deemed to be essential to the fair resolution of the case because of its public importance or the complexity of the factual or legal issues presented." Therefore, Plaintiff's Motion for Oral Argument (Doc. 37) is DENIED.

I. BACKGROUND

Plaintiff brings twenty causes of action based upon termination of her employment as a magistrate and staff attorney for Judge Gregory Stephens. In the R&R, the Magistrate Judge has set forth the factual allegations in the Amended Complaint (Doc. 31) and the same will not be repeated here except to the extent necessary to address Plaintiff's objections.

Defendants, Judge Gregory Stephens, Michael T. Gmoser, Dan Ferguson, and Butler County, have moved for dismissal of Counts I, IV, VI, VII, VIII, X, XI, XII, XIII, XIV, XV (in part), XVI, XVII, XVIII, and XX based on failure to state a claim; and dismissal of Count II for lack of jurisdiction.

The Magistrate Judge recommends that (1) Defendants' Motion To Dismiss the Complaint (Doc. 13) and Amended Motion To Dismiss the Complaint (Doc. 14) be denied as moot due to the filing of the Amended Complaint; (2) Plaintiff's Motion to Stay a Decision on the Motion to Dismiss as to Count II of the Amended Complaint only (Doc. 30) be DENIED; Defendants' Motion for Partial Dismissal of the Amended Complaint (Doc. 22) be DENIED as to Counts I and XV, and GRANTED under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted as to Counts IV, VI, VII, VIII, X, XI, XII, XIII, XIV, XVI, XVII, XVIII and XX and under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction as to Count II.

Plaintiff's objections are limited to the dismissal of her claims for violation of equal protection under 42 U.S.C. § 1983 (Count IV); violation of substantive due process under 42 U.S.C. § 1983 (Counts VI, VII, and VIII); intentional infliction of emotional distress under Ohio law (Counts XVI and XVII); defamation under Ohio law (Counts XI and XII); and breach of contract and promissory estoppel under Ohio law (Counts XIV and XVIII). Accordingly, the Court's discussion is limited to those claims.

II. ANALYSIS

A. Standard of review

A complaint may be dismissed according to Federal Rule of Civil Procedure 12(b)(6), for a "failure to state a claim upon which relief can be granted." In reviewing a motion to dismiss, the Court must accept the plaintiff's allegations as true and construe the complaint in the light most favorable to the plaintiff. Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008). The complaint need not contain detailed factual allegations, yet it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

B. Section 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the plaintiff was deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of law. Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015) (citing Marcilis v. Twp. of Redford, 693 F.3d 589, 595 (6th Cir. 2012)).

However, as the Sixth Circuit has explained: "It is not enough for a complaint under § 1983 to contain mere conclusory allegations of unconstitutional conduct by persons acting under color of state law. Some factual basis for such claims must be set forth in the pleadings." Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986).

C. Equal Protection (Count IV)

The Equal Protection Clause of the Fourteenth Amendment, § 1, provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."The Equal Protection Clause "prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference." Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th Cir. 2012) (quoting TriHealth, Inc. v. Bd. of Comm'rs, 430 F.3d 783, 788 (6th Cir. 2005)).

Plaintiff claims that Butler County violated her Equal Protection rights by recognizing Christmas as a "legal holiday" under Ohio Revised Code § 325.19(D)(1), but not providing protection for non-Christians who seek time off for different religious holidays.¹ Ohio Revised Code § 325.19 provides in relevant part:

In addition to vacation leave, a full-time county employee is entitled to eight hours of holiday pay for New Year's day, Martin Luther King day, Washington- Lincoln day, Memorial day, Independence day, Labor day, Columbus day, Veterans' day, Thanksgiving day, and Christmas day, of each year.

Ohio Rev. Code § 325.19(D)(1).

Plaintiff takes issue with the analysis employed by the Magistrate Judge. Plaintiff argues that her claim is based on her right to the free exercise of her religion, opposed to a claim under the Establishment Clause.²

The Sixth Circuit has outlined the analysis to be applied to an equal protection claim based on the right to exercise religion:

An equal protection claim is subject to rational basis review unless it involves infringement of a fundamental right or application to a suspect class. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105S.Ct. 3249, 87 L.Ed.2d 313 (1985). Unless the Program violates [the plaintiff's] fundamental right to exercise his religion, it must be upheld as long as it bears a "rational relationship to a legitimate state interest." Jamrog, 411 F.3d at 618. Strict scrutiny applies where the classification affecting eligibility for benefits is based on religion or burdens the exercise of religion. See McDaniel v. Paty, 435 U.S. 618, 628, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978). The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. Laws intended to advance or inhibit religion, or having either effect, generally violate the Establishment Clause. Agostini v. Felton, 521 U.S. 203, 222-23, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

Bowman v. United States, 564 F.3d 765, 772-73 (6th Cir. 2008).

Under this analysis, this Court dismissed a claim which was based on a federal statute establishing Christmas Day as a legal public holiday. Ganulin v. United States, 71 F. Supp. 2d 824, 838 (S.D. Ohio 1999), aff'd, 238 F.3d 420 (6th Cir. 2000). This Court explained that the plaintiff was not a member of a suspect class to the extent that the federal statute could be said to target him. Id. at 837. This Court explained that unless the law impinges on the plaintiff's fundamental rights of freedom of association or to free exercise of religion then the statute will be upheld if it bears a rational relationship to a legitimate end. Id.; see also Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 134 L. Ed. 2d 855 (1996) (explaining "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.").

Another federal district court has held similarly when addressing a statute which created a public school holiday on Friday before Easter. Koenick v. Felton, 973 F. Supp. 522 (D. Md. 1997), aff'd, 190 F.3d 259 (4th Cir. 1999). The court concluded that because the state statute "treats all affected individuals equally by providing them with an extended weekend surrounding a highly secularized holiday, there is no possibleviolation of the Equal Protection Clause." Id. at 530. Therefore, the court dismissed the plaintiff's equal protection claim.

Ohio Revised Code § 325.19 treats all affected individuals equally. Plaintiff was not prohibited from taking paid leave on Christmas Day or any of the other listed holidays because of her religion. Instead, Plaintiff complains that Judge Stephens terminated her for requesting time off to observe religious holidays. These allegations form the basis of Plaintiff's claim that her termination was in retaliation for engaging in the free exercise of her religious beliefs. Plaintiff does not allege a factual basis for an equal protection claim based on Ohio Revised Code § 325.19.

Therefore, the Magistrate Judge did not err in concluding that Plaintiff has failed to state a claim based on Ohio Revised Code § 325.19. Accordingly, Plaintiff's objections on this point are OVERRULED.

D. Substantive due process (Counts VI, VII and VIII)

The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The Sixth Circuit has recognized two categories of substantive due process claims: (1) those claims that, other than procedural claims, assert the denial of a right, privilege, or immunity guaranteed by the Constitution or federal statute; and (2) those official acts that "shock the conscience." Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996). Plaintiff argues she has adequately alleged both...