Hoffman v. O'Malley

LAURA HOFFMAN, et al., Plaintiffs, v. MICHAEL C. O'MALLEY, et al., Defendants.

CASE NO. 1:18CV309

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

February 8, 2019

JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:

This matter comes before the Court upon the Motions (ECF DKT #10, #11 & #12) of Defendant Michael C. O'Malley, Defendant Gregory Mussman and Defendants Jennifer Driscoll and Joanna Whinery for Judgment on the Pleadings. For the following reasons, the Motions are granted in part and denied in part.

I. BACKGROUND

Defendant Michael C. O'Malley took office as Cuyahoga County Prosecutor on January 2, 2017. O'Malley installed Defendant Gregory Mussman as Chief of the Juvenile Justice Unit and Defendant Joanna Whinery as Managing Attorney in that Unit.

Within a few short weeks, a representative of the Cleveland Rape Crisis Center contacted the Prosecutor's Office with concerns about a number of sexual assault cases involving juvenile victims which had been reported but never charged. Mussman, Whinery and Defendant Jennifer Driscoll, an Assistant Prosecuting Attorney, began an investigation focusing on the Juvenile Division's intake of sexual assault cases.

The investigation revealed that nearly 2,000 cases had been placed on the "inactive" list in the computerized case management system. In addition, the investigation uncovered 76 sexual assault cases that were never fully reviewed for charges. Plaintiff Linda Herman had handled two of the uncharged cases and Plaintiff Laura Hoffman handled four such cases.

In the wake of the investigation, several Assistant Prosecuting Attorneys were disciplined. Robin Belcher, the previous Managing Attorney of the Intake Unit, resigned. Plaintiffs were offered the option of resigning or being terminated. They both chose to resign their employment on February 8, 2017. The Prosecutor's Office issued other discipline including demotions, suspensions and verbal reprimands.

Plaintiff Hoffman has a genetic condition that severely impairs her vision and which requires accommodation in the workplace. Plaintiff Herman was approximately 20 years older than her colleagues and was 52 years old at the time of her termination.

On or about February 13, 2017, Defendants O'Malley, Whinery, Driscoll and Mussman told a Cleveland.com reporter that 76 sexual assault cases, including 37 reported rapes and 32 reports of gross sexual imposition, had been mishandled by the Juvenile Unit and "sat dormant on the desks of assistant prosecutors for months and, in some cases, years." (Defendants' Joint Answer, ECF DKT #4, Exhibit A). Plaintiffs were identified as two of the three attorneys in the office who "handled the bulk of the cases" and who were asked to resign following a disciplinary hearing. (Id.).

The prior Chief of the Juvenile Division was Duane Deskins, who was subsequently appointed to the newly-created position of Chief of Prevention, Intervention and Opportunity for Youth and Young Adults for the City of Cleveland. He told Cleveland.com that "he wasnot aware of any delays or mishandling of cases while he headed the juvenile division" and that "we did an aggressive job." (Id.).

O'Malley said the "decision to go public with revelations" was not about the prior administration but it was about "results," and "the results for the public have been a failure in this particular case." (Id.).

Other media sources responsible for the publication of this story are The Plain Dealer, The Morning Journal, Fox 8 Cleveland, News Channel 5 Cleveland and WCPN Ideastream. (See Defendants' Joint Answer, ECF DKT #4, Exhibits A-E).

On February 8, 2018, Plaintiffs brought this action for damages against Cuyahoga County and O'Malley, Assistant Prosecutor Lisa Williamson, Mussman, Whinery and Driscoll, in their official and personal capacities, for defamation, discrimination and wrongful termination of employment in violation of the Americans with Disabilities Act of 1990 ("ADA"), the Age Discrimination in Employment Act ("ADEA") and Ohio Revised Code Sections 4112.02(A) and 4112.14.

Defendants O'Malley, Mussman, Whinery and Driscoll have filed Motions for Judgment on the Pleadings (ECF DKT #10, #11 & #12). Counts One through Four of Plaintiffs' Complaint, stating federal and state law employment discrimination claims, are asserted only against Defendants O'Malley and Mussman. Defendants O'Malley and Mussman argue that these claims are not actionable against them in their personal capacity. Further, all the individual Defendants argue that the claims against them in their official capacity should be dismissed as duplicative. As to Counts Five and Six, all of the moving Defendants contend that Plaintiffs' Complaint does not sufficiently state a claim for reliefbecause it provides only a formulaic recitation of the elements of Defamation Per Se and False Light Invasion of Privacy.

II. LAW AND ANALYSIS

Fed.R.Civ.P. 12(c) Standard of Review

After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). In this jurisdiction, "[t]he standard of review for a judgment on the pleadings is the same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) . . . We 'construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.'" Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 389 (6th Cir.2007) (citations omitted). The court's decision "rests primarily upon the allegations of the complaint;" however, "exhibits attached to the complaint[] also may be taken into account." Barany-Snyder v Weiner, 539 F.3d 327, 332 (6th Cir.2008) (citation omitted) (brackets in the original). "In addition, when a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007).

A Rule 12(c) motion "is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law." Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir.1991). The court need not accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Bus. Servs., 135 F.3d 389,405 (6th Cir. 1998). The complaint must state a plausible claim for relief. "Plausibility is a context-specific inquiry, and the allegations in the complaint must 'permit the court to infer more than the mere possibility of misconduct,' namely, that the pleader has 'show[n]' entitlement to relief." Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011). Dismissal is warranted if the complaint lacks an allegation as to a necessary element of the claim raised. Craighead v. E.F. Hutton & Co., 899 F.2d 485 (6th Cir. 1990).

Official capacity claims

Defendants contend that Plaintiffs' federal and state claims against the individual Defendants in their official capacities should be dismissed as redundant. The Court agrees.

Official capacity suits "represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Graham, 473 U.S. at 166, citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985). Thus, for example, a suit against a municipal employee in his official capacity is the equivalent of a suit against the public entity itself. Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003).

Therefore, since Defendants are employees of Cuyahoga County and since the County has been named and served with notice of the suit, Plaintiffs' claims against the individual Defendants in their official capacity are dismissed as duplicative of claims against Defendant Cuyahoga County.Personal capacity claims

Defendants O'Malley and Mussman argue that they are not "employers" subject to personal liability for Plaintiffs' claims in Counts One through Four under the ADA, ADEA, R.C. § 4112.02(A) and R.C. § 4112.14. Rather, Defendants are supervisors and co-workers. Plaintiffs do not contest dismissal of the personal capacity claims. (Plaintiffs' Opposition, ECF DKT #14 at 14). Therefore, Counts One, Two, Three and Four of Plaintiffs' Complaint are dismissed as against Defendants O'Malley and Mussman individually.

Defamation

"To establish defamation, the plaintiff must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement." Anthony List v. Driehaus, 779 F.3d 628, 632-33 (6th Cir. 2015). In Ohio, words are defamatory when the "statements reflect upon a person's character in a manner that will cause him to be ridiculed, hated, or held in contempt, or in a manner that will injure him in his trade or profession." Earp v. Kent State Univ., 2010-Ohio-5904, ¶12 (Ohio Ct.Cl.2010) (citing Matikas v. Univ. of Dayton, 152 Ohio App.3d 514 (2003)); Kendel v. Local 17-A United Food & Commercial Workers, 835 F. Supp.2d 421, 435 (N.D. Ohio 2011).

"Defamation falls into two categories, defamation per quod or per se. In defamation per quod, a publication is merely capable of being interpreted as defamatory and the plaintiff must allege and prove damages. Defamation per se occurs if a...