Ehrlich v. Kovack

135 F.Supp.3d 638

Annette Ehrlich, Plaintiff,

v.Michael Kovack et al., Defendant.

CASE NO. 1:14cv2560

United States District Court, N.D. Ohio, Eastern Division.

Signed October 1, 2015

Theodore J. Lesiak, Kristopher B. Immel, Roderick Linton Belfance, Akron, OH, for Plaintiff.

Todd M. Raskin, Cara M. Wright, Mazanec, Raskin & Ryder, Kimberly Vanover Riley, Montgomery, Rennie & Jonson, Cleveland, OH, David M. Smith, Mazanec, Raskin & Ryder, Solon, OH, Brian M. Spiess, Montgomery, Rennie & Jonson, Cincinnati, OH, for Defendant.

MEMORANDUM OPINION & ORDER

Greg White, United States Magistrate Judge

Currently before the Court is Defendants Medina County, Medina County Commissioners, Michael Kovack and Joan Heller's Motion for Judgment on the Pleadings.¹ (Doc. No. 42.) Plaintiff Annette Ehrlich filed a Brief in Opposition on August 10, 2015, to which Defendants replied. (Doc. Nos.46, 47.)

For the following reasons, Defendants' Motion (Doc. No. 42) is GRANTED IN PART and DENIED IN PART.

I. Procedural Background

On October 24, 2014, Plaintiff Annette Ehrlich filed a Complaint in the Medina County Court of Common Pleas against the following defendants: (1) Medina County Auditor Michael Kovack; (2) Medina County Chief Deputy Auditor Joan Heller; (3) Medina County; and, (4) the Medina County Commissioners.² (Doc. No. 1–3.) The Complaint asserted the following five claims: (1) violation of the Ohio Whistleblower Act, Ohio Rev.Code § 4113.52(B) (against Defendant Kovack and the Medina County Defendants only); (2) First Amendment retaliation under 42 U.S.C. § 1983 (against Defendant Kovack and the Medina County Defendants only); (3) defamation (against Defendant Heller only); (4) malicious prosecution (against Defendant Heller only); and, (5) intentional infliction of emotional distress (against all Defendants).

Defendants removed the action to this Court on November 20, 2014. (Doc. No. 1.) The next day, Defendants Kovack and Heller, and the Medina County Defendants filed separate Answers. (Doc. Nos.3, 4.) On January 5, 2015, pursuant to Local Rule 16.3(b), a Parties' Planning Report was filed. (Doc. No. 9.) Therein, the parties advised as follows:

Upon information and belief, the Medina County Sheriff's Department is presently investigating Defendant Michael Kovack. At this point in time, Defendant Kovack is unable to determine when the investigation will be concluded. As a result, Defendant Kovack may be required to seek a stay of any discovery directed to him until the investigation is concluded. Should Defendant Kovack seek such a stay, and the Court determines that Defendant Kovack's stay request is granted; Plaintiff may be seeking a stay of all discovery until the completion of the investigation.

(Doc. No. 9 at 4.)

A case management conference was conducted on January 16, 2015, at which time certain deadlines were set. (Doc. No. 12.) In addition, the Court ordered Defendants Kovack and Heller to file a Report by March 16, 2015 updating the status of the criminal investigation of Defendant Kovack and advising whether a stay of discovery would be necessary. (Doc. No. 11.)

The Medina Municipal Court docket reflects that, on January 22, 2015, Defendant Kovack was charged with first degree misdemeanor violations of Ohio Revised Code § 9.03(D)(1) (Misuse of Public Funds) and Ohio Revised Code § 102.03(D) (Using a Public Office to Obtain Something of Value). See State v. Kovack, Medina Municipal Court No. 15CRB0085, Docket. Kovack entered a plea of no contest and, on February 6, 2015, was referred to a pretrial diversion program pursuant to Ohio Revised Code § 2935.36. Id.

On February 12, 2015, Plaintiff served subpoenas on the Medina County Special Prosecutor and the Medina County Sheriff,³ seeking the entire investigatory file regarding the underlying criminal case against Defendant Kovack. (Doc. Nos.15–1, 15–3.) The Medina County Defendants moved to quash these subpoenas on both procedural and substantive grounds. (Doc. No. 18.)

The Court conducted a status conference regarding the Medina County Defendants' Motion to Quash on February 26, 2015. (Doc. No. 21.) At that time, the Court ordered counsel for the Medina County Defendants to redact personal identifiers from the Medina County Sheriff report at issue and provide a copy of that report to Plaintiff by no later than March 30, 2015. Id. at 1. The Court also indicated that issues relating to the information subpoenaed from the Medina County Special Prosecutor would be addressed at a later date, if necessary. Id. at 2.

On March 16, 2015, Defendants Kovack and Heller filed a Motion to Stay the instant case pending the conclusion of the criminal proceedings against him. (Doc. No. 23.) Plaintiff filed a Brief in Opposition (Doc. No. 24), to which Defendants Kovack and Heller replied. (Doc. No. 29.) On March 23, 2015, the Court ordered the Medina County Defendants to refrain from producing the Sheriff report at issue until after the Court had ruled on the pending Motion to Stay. (Doc. No. 27.)

On May 1, 2015, the Court met with counsel to discuss the Motion to Stay, and oral argument was thereafter conducted on the record. (Doc. No. 34.) At that time, the Court denied the motion on the record, and indicated a written order would be forthcoming. Id. The parties then agreed to a Stipulated Protective Order containing an Attorney Eyes Only provision regarding the Medina County Sheriff Report at issue and submitted it for the Court's review. The Stipulated Protective Order was entered that day.⁴ (Doc. No. 35.) On May 5, 2015, the Court issued a Memorandum Opinion & Order denying Defendants Kovack and Heller's Motion to Stay. (Doc. No. 36.)

On July 21, 2015, Defendants filed a joint Motion for Judgment on the Pleadings. (Doc. No. 42.) Plaintiff filed a Brief in Opposition on August 10, 2015 (Doc. No. 46), to which Defendants jointly replied. (Doc. No. 47.) Meanwhile, Defendants jointly filed another Motion to Stay Discovery, this time seeking a stay pending a ruling on their Motion for Judgment on the Pleadings. (Doc. No. 43.) Plaintiff did not oppose the motion. On August 20, 2015, Defendants' Motion to Stay was granted as unopposed.

II. Factual Allegations

The Complaint alleges the following. Plaintiff was formerly employed as an Information Technology Manager in Defendant Kovack's Medina County Auditor's Office. (Doc. No. 1–3 at ¶ 3.) On July 21, 2011, Defendant Kovack provided his County laptop to Plaintiff for repairs. Id. at ¶ 9. While working on Defendant Kovack's computer, Plaintiff discovered "thousands of pornographic images" and reported her discovery to Defendant Kovack. Id. at ¶ 10. Defendant Kovack stated his son had used the computer and downloaded the images. Id. at ¶ 11.

Years later, in September 2013, Plaintiff discovered Auditor's Office print logs indicating Defendant Kovack had printed campaign materials for his Wine and Cheese political fund raiser. Id. at ¶ 12. In February 2014, Plaintiff discovered Auditor's Office print logs indicating Defendant Kovack had printed campaign materials for his Chili Cook Off political fund raiser. Id. at ¶ 13.

On March 19, 2014, Plaintiff presented a letter to Defendant Kovack,⁵ reporting her discovery that he had used the County printer to print campaign literature. Id. at ¶ 14. This letter was copied to the Medina County Human Resources Department, as well as to Plaintiff's supervisors Defendant Heller and Lisa Nichols. Id. at ¶¶ 14–15. In addition, Plaintiff's letter (attached to the Complaint as Exhibit A) addressed Plaintiff's concerns about the denial of her request to use her vacation time to attend a computer training seminar ("Pictometry training"). In her letter, Plaintiff states she felt Defendants Kovack and Heller had been "picking on her;" failing to treat her as a valued employee; and, creating a hostile work environment. (Doc. No. 13 at pp. 13–14.)

The next day, on March 20, 2014, Defendant Kovack, Defendant Heller, and Nichols met with Plaintiff and presented her with a letter dated March 17, 2014 scheduling a pre-disciplinary conference on March 21, 2014 regarding Plaintiff's "insubordination" relating to the Pictometry training incident. (Doc. No. 1–3 at ¶ 18). At the pre-disciplinary hearing, Defendant Kovack failed to address Plaintiff's allegation that Kovack "had committed a felony under Ohio law." Id. at ¶ 20. According to the Complaint, Kovack also failed to make a reasonable and good faith effort to correct his "felony violations of Ohio law" within twenty-four hours or the close of business on the next business day following receipt of Plaintiff's report. Id. at ¶ 21.

On March 20, 2014, Plaintiff filed a report with the Medina County Sheriff describing Defendant Kovack's alleged use of County resources to print campaign literature. Id. at ¶ 23. She allegedly included "proof" in this report. Id. at ¶ 24. At Plaintiff's disciplinary hearing, Defendant Kovack advised Plaintiff that he was probably going to suspend her for three days for the Pictometry training incident. Id. at ¶ 25. On March 24, 2014, Kovack advised Plaintiff that, instead of suspension, her punishment was to be a written reprimand for disrespect and insubordination. Id. at ¶ 26.

In July 2014, Plaintiff requested leave under the Family Medical Leave Act ("FMLA") to care for her mother, who had been diagnosed with Lymphoma and was scheduled to undergo chemotherapy. Id. at ¶ 27. When she returned from leave on August 25, 2014, Defendant Kovack informed Plaintiff she was being placed on paid administrative leave without explanation until September 3, 2014. Id. at ¶ 28. Thereafter, in a letter dated August 29, 2014, Defendant Kovack advised Plaintiff she was being placed on administrative leave until further notice and asked her to report to the Auditor's Office on September 5, 2014 to discuss concerns Kovack had prior to Plaintiff's FMLA leave. Id. at ¶ 29.

The meeting was conducted on September 5, 2014. During the meeting, "Kovack expressed concerns alleging...