Mishak v. Serazin
| Decision Date | 07 February 2018 |
| Docket Number | CASE NO: 1:17CV1543 |
| Parties | MATTHEW A. MISHAK, Plaintiff, v. SCOTT F. SERAZIN, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION & ORDER
This case is before the Court upon consent of the parties, entered October 10, 2017. (Doc. No. 20.) Currently pending is Defendants City of Elyria and Scott F. Serazin's Motion for Partial Judgment on the Pleadings. (Doc. No. 16.) Plaintiff Matthew Mishak filed a Brief in Opposition on October 17, 2017, to which Defendant replied. (Doc. No. 23, 25.)
For the following reasons, Defendants' Motion (Doc. No. 16) is GRANTED IN PART and DENIED IN PART as follows.
On July 21, 2017, Plaintiff Matthew Mishak ("Plaintiff" or "Mishak") filed a pro se Complaint in this Court against Defendants Scott F. Serazin (Office of the Elyria Law Director, in his individual and official capacities) and the City of Elyria, alleging various state and federal claims arising from his demotion and eventual termination as prosecutor for the City of Elyria. (Doc. No. 1.)
Defendants filed an Answer and Partial Motion for Judgment on the Pleadings on September 8, 2017. (Doc. Nos. 10, 11.)
Mishak thereafter retained counsel and filed his First Amended Complaint on September 22, 2017. (Doc. No. 13.) Defendants' Partial Motion for Judgment on the Pleadings was denied as moot based on the filing of the First Amended Complaint. (Doc. No. 21.)
On October 3, 2017, Defendants filed a "Motion for Partial Judgment on the Pleadings responsive to the Amended Complaint," in which they seek judgment in their favor with respect to six of Mishak's twelve claims. (Doc. No. 16.) Mishak filed a Brief in Opposition on October 17, 2017, to which Defendants replied.1 (Doc. Nos. 23, 25.)
The First Amended Complaint contains the following factual allegations.
Plaintiff Mishak served over ten years in the public sector as a prosecuting attorney. (Doc. No. 13 at ¶ 5.) At all times relevant to this action, Defendant Serazin served as the Law Director for the City of Elyria. (Id. at ¶ 6.)
Mishak and Serazin worked together at the Lorain County Prosecutor's Office from 2006 to 2011, where they became friends. (Id. at ¶ 10.) Mishak struggled with Attention Deficit Hyperactivity Disorder ("ADHD"), and Serazin was aware of Mishak's condition throughout his employment with the City of Elyria. (Id.)
In 2010, Serazin decided to run for Law Director for the City of Elyria and asked Mishak to manage his campaign, and Mishak accepted. (Id. at ¶ 11.) Serazin won and, as Law Director, appointed Mishak to the salaried position of Chief Prosecutor for the City of Elyria, on January 3, 2012. (Id. at ¶ 12.) In 2012, Serazin caused Mishak to seek and receive appointment asProsecutor for the Village of Grafton. (Id. at ¶ 13.) This position was an hourly one, and had been held by Mishak's predecessor for many years. (Id.)
By early 2013, "it became clear that Serazin's attitude towards Mishak changed in a negative way." (Id. at ¶ 14.) Mishak was allegedly placed under scrutiny unlike other staff attorneys. (Id. at ¶ 15.) In addition, Serazin was verbally abusive and engaged in "harshly criticizing behavior directly related to Mishak's ADHD." (Id. at ¶ 15.)
In mid-2013, Mishak became the subject of an ethics investigation by the Lorain County Bar Association (subsequently resolved favorably to Mishak), which Serazin improperly disclosed to the local press. (Id. at ¶ 16.) This ethics investigation had not at that point elicited a probable cause finding and was ultimately dismissed for lack of probable cause. (Id.) Mishak asserts Serazin's disclosure of this confidential investigation to the local press was a "severe violation of the Ohio Rules of Professional Conduct and evidenced his discriminatory animus towards Mishak." (Id.)
In December 2013, Serazin "demoted Mishak from Chief Prosecutor to Prosecutor, reduced his pay, significantly modified Mishak's job responsibilities, and removed Mishak from his assigned courtroom." (Id. at ¶ 17.)
In May 2014, Serazin circulated a policy regarding representation of "outside jurisdictions," which required Mishak to take personal or vacation time for work done for the Village of Grafton, depending on "undelineated circumstances." (Id. at ¶ 19.) Mishak claims the policy was "vague and did not clearly indicate when outside work could and could not be performed by City of Elyria Law Department Employees." (Id.)
In July 2015, Serazin placed a letter in Mishak's public personnel file, ostensibly aimedat reprimanding Mishak for failing to file a notice of appearance in a case, but otherwise severely criticizing Mishak's honesty, integrity, respect for the law and accusing Mishak of "terrorist" affiliations. (Id. at ¶ 20.)
On July 22, 2016, Serazin called Mishak to Serazin's office with his Chief of Staff, Amanda Deery, and discussed terminating Mishak from his employment for allegedly unjustly enriching himself by "double dipping," due to his representation of the Village of Grafton. (Id. at ¶ 21.) Mishak was placed on paid suspension with time and billing to be reviewed. (Id. at ¶ 22.) A physician's letter regarding Mishak's ADHD was requested by Serazin. (Id.) Serazin formalized Mishak's suspension with a twelve (12) page letter. (Id.)
Mishak supplied the requested letter from his physician to Serazin on August 1, 2016. (Id. at ¶ 23.) At that time, Mishak notified Serazin of his need to take medical leave due to his ADHD. (Id. at ¶¶ 129-130.) On August 2 or 3, 2016,2 Serazin terminated Mishak's employment. (Id. at ¶¶ 24, 131.)
On August 4, 2016, Serazin initiated contact with Ms. Lisa Roberson ("Roberson"), a Chronicle-Telegram (local Elyria newspaper) reporter. (Id. at ¶ 25.) In an office interview, Serazin told Roberson that Mishak was terminated for stealing from the City of Elyria and an investigation was ongoing. (Id. at ¶ 26.) Serazin provided copies of Mishak's suspension and termination letters to Roberson. (Id.) Mishak alleges that, at that time, the termination letter had yet to be delivered to him. (Id.) The suspension letter and termination letter contained a number of statements which Mishak claims are "completely and wholly false and/or made with recklessdisregard for the truth." (Id. at ¶¶ 25- 27.)
Mishak first learned of his dismissal on August 4, 2016, when Roberson called seeking a comment. (Id. at ¶ 29.) On August 5, 2016, the front-page headline of the Chronicle Telegram read "Elyria fires prosecutor; - 'double dipping' alleged - Law Director Says that Matt Mishak did work for Grafton while on the clock for Elyria," followed by the article about Roberson's interview with Serazin. (Id. at ¶ 30.)
Shortly thereafter, Serazin contacted the Village of Grafton and offered to have Elyria's Law Department assume the Village's prosecutorial responsibilities. (Id. at ¶ 31.) Subsequent to that contact, Mishak was relieved of his position with the Village of Grafton. (Id. at ¶ 32.)
Serazin also contacted the Lorain County Prosecutor's Office, the Lorain County Sheriff's Office, and the Ohio Auditor's Office and "published materially false statements in a malicious action to damage Mishak's good reputation." (Id. at ¶¶ 38, 39, 40.)
Mishak filed Complaints with the EEOC for disability discrimination. (Id. at ¶ 34.) He subsequently asked that they be dismissed and that he be issued a Right to Sue letter. (Id.) The EEOC matter "has been dismissed at his request." (Id.)
The First Amended Complaint asserts the following 12 claims: (1) defamation per se - libel and slander (Count 1); (2) invasion of privacy- false light (Count 2); (3) malicious prosecution under 42 U.S.C. § 1983 (Count 3); (4) abuse of process under 42 U.S.C. § 1983 (Count 4); (5) state and federal disability discrimination claims based upon alleged failure to accommodate (Counts 5 and 6); (6) state and federal disability discrimination claims based upon alleged disparate treatment (Counts 7 and 8); (7) state and federal retaliation claims (Counts 9 and 10); (8) retaliation claim under the Family & Medical Leave Act (Count 11); and (9) loss ofemployment under 42 U.S.C. § 1983 (Count 12).
Pursuant to Fed. R. Civ. P. 12(c), "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." "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." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and quotation marks omitted).
The same standard for deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim applies to a Rule 12(c) motion for judgment on the pleadings. See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011). In order to survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain (1) 'enough facts to state a claim to relief that is plausible,' (2) more than 'formulaic recitation of a cause of action's elements,' and (3) allegations that suggest a 'right to relief above a speculative level.' " Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief above the speculative level—"does not 'require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.' " Bassett v. National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S. at 555-556, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to...
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