Risner v. Ohio Dept. of Rehabilitation and Corr., Case No. 1:06 CV 1953.

577 F.Supp.2d 953

John L. RISNER, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.

Case No. 1:06 CV 1953.

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

May 20, 2008.

COPYRIGHT MATERIAL OMITTED

Aaron B. Maduff, Maduff, Medina & Maduff, Chicago, IL, Gary A. Reeve, Kennedy Reeve & Knoll, Columbus OH, for Plaintiffs.

Mahjabeen F. Qadir, Timothy A. Lecklider, Timothy M. Miller, Mahjabeen F. Qadir, Office of the Attorney General, Columbus OH, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

LESLEY WELLS, District Judge.

Plaintiff John L. Risner brought this action against the Ohio Department of Rehabilitation and Correction's ("ODRC"), Sharon Haines, Jill Goldhart, and Harry Hageman, alleging discrimination in violation of the Uniform Services Employment and Re-Employment Rights Act ("USERA"), 38 U.S.C. § 4301, et seq. (Doc. 1). The matter was referred to Magistrate Judge Kenneth S. McHargh on 31 March 2008 (Doc. 23), pursuant to 28 U.S.C. § 636(b)(1)(B), for a Report and Recommendation ("R & R") on defendants' Motion for Judgment on the Pleadings. (Doc. 14).

Magistrate Judge McHargh's thorough and carefully drawn R & R advises that the defendants' Motion be granted in part and denied in part. At this juncture of the proceedings, viewing the allegations in the Complaint in the light most favorable to Mr. Risner, the R & R finds the broad language of USERRA, 38 U.S.C. § 4303(4), encompasses potential liability for damages as to defendants Sharon Haines and Harry Hageman in their individual capacities.¹ (R & R, pp. 965-67). The R & R also advises that Mr. Risner's claim against defendant ODRC be dismissed as barred by the Eleventh Amendment of the United States Constitution. (R & R, pp. 958-65).

No party has objected to the Magistrate Judge's R & R. Therefore, it must be assumed that the parties are satisfied with its conclusions. Any further review by this Court would be a duplicative and inefficient use of the Court's limited resources. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

Accordingly, Magistrate Judge McHargh's R & R is adopted. The defendants' Motion for Judgment on the Pleadings is granted in part and denied in part. This matter will proceed on Mr. Risner's USERRA claim only against Sharon Haines, Regional Administrator of the ODRC, and Harry Hageman, Deputy Director of the Adult Parole Authority of the ODRC, in their individual capacities.

Party counsel will make themselves available on 28 May 2008 at 10:00 a.m. for a Court initiated telephonic conference to address scheduling discovery in this matter.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

KENNETH S. McHARGH, United States Magistrate Judge.

On October 15, 2006, Plaintiff John L. Risner commenced this action in this Court by filing a Complaint against the Ohio Department of Rehabilitation and Correction, Parole Division ("ODRC"), Sharon Haines, Jill Goldhart, and Harry Hageman. (Doc. 1.) Plaintiff alleged discrimination in violation of the Uniform Services Employment and Re-Employment Rights Act ("USERRA") 38 U.S.C. § 4301, et seq.

On November 20, 2006, Defendants filed an Answer to the Complaint. (Doc. 6.) On July 26, 2007, the Court ordered the parties to submit simultaneous briefs on the issue of subject matter jurisdiction, pursuant to 38 U.S.C. 4323(b). (Doc. 12.) On August 10, 2007, Plaintiff filed a Brief in Support of Jurisdiction. (Doc. 13.) On the same day, rather than file a brief on the issue of subject matter jurisdiction, Defendants filed a Motion for Judgment on the Pleadings. (Doc. 14.) On August 16, 2007, Plaintiff filed a Motion for Leave to File a Brief in Response to Defendants' Motion for Judgment on the Pleadings. (Doc. 15.) On August. 17, 2007, Defendants filed a Response to Plaintiffs Brief in Support of Jurisdiction (doc. 16), and Plaintiff filed a Response in Support of Jurisdiction (doc. 17). On August 24, 2007, the Court granted Plaintiff's Motion for Leave to File a Brief in Response to Defendants' Motion for Judgment on the Pleadings, allowing Plaintiff until September 13, 2007 in which to file his brief. On September 13, 2007, Plaintiff filed an Opposition to the Motion for Judgment on the Pleadings. (Doc. 19.) On September 21, 2007, Defendants filed an unopposed Motion for Extension of Time until October 1, 2007 in which to file a reply brief to Plaintiff's Opposition. (Doc. 21.) Defendants' Motion for Extension of Time was granted by the Court on September 24, 2007, and Defendants filed a Reply to Plaintiff's Opposition on October 1, 2007 (doc. 22). On March 31, 2008, Defendants' pending Motion for Judgment on the Pleadings was referred to the Magistrate Judge for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Motion be GRANTED in part and DENIED in part.

I. FACTS

Plaintiff alleges in his Complaint that he became employed by the ODRC as a Parole Officer I in May 1994, and that by March 1999, he had become a Parole Officer II. (Doc. 1, ¶ 1.) At that time, Plaintiff applied for a promotion to the position of Parole Services Supervisor. (Id.) Plaintiff was informed by members of the interviewing panel that he was qualified for the position, but that one obstacle to his obtaining the position was his status as an Air Force Reservist because if he was called to active duty, he may be required to be away from the job for long periods of time. (Id.) Plaintiff did not receive the promotion and was denied again for the same reasons when he applied for the promotion again in September 1999. (Id.) Had he obtained the promotion, Plaintiff hoped to obtain a further promotion to Regional Administrator. (Id. at ¶ 2.) This opportunity became available to other Parole Services Supervisors after March 1999, but was not available to Plaintiff because he had not received the first promotion to Parole Services Supervisor. (Id.)

In May 2000, Plaintiff underwent neck surgery for an injury he sustained while on military duty. (Doc. 1, ¶ 3.) Plaintiff's physician ordered Plaintiff to go on light duty to avoid risk of permanent injury in the event of any physical altercation with parolees and to prevent him from having to carry a firearm while on medication. (Id. at ¶ 41.) Plaintiff thereafter requested light duty work from ODRC, but was told that it was not available to parol officers. (Id. at ¶ 3.) Light duty was, however, available to Parole Services Supervisors, and therefore, would have been available to Plaintiff if he had been promoted to that position. (Id.) Because light duty was not available to Plaintiff, he was forced to go on disability leave, and consequently earn only a small portion of his salary, until December 2005, when he was able to return to work without restrictions. (Id. at ¶ 4.)

Plaintiff requested an internal investigation of Defendant Haines, one of the members of the interviewing panel and then Regional Administrator of the ODRC. (Doc. 1, ¶ 27-28.) On December 23, 1999, the United States Department of Labor ("U.S. DOL") concluded that Plaintiffs military commitment was a factor in the decision not to promote him to the position of Parole Services Supervisor. (Id. at ¶ 30.) Defendant Goldhart, Deputy Director of the Adult Parole Authority of the ODRC, had authority to overrule the interviewing panel and promote Plaintiff. (Id. at ¶ 29.) The U.S. DOL approached Defendant Goldhart and requested that she bring the department into compliance with USERRA by promoting Plaintiff, which Defendant Goldhart refused to do. (Id. at ¶ 30-31.)

Upon Plaintiff's returned to work on December 28, 2005, he was informed by another employee that she had heard Defendant Haines state that Plaintiff's military service made him ineligible for the promotion in 1999. (Doc. 1, ¶ 46-47.) As a result, Plaintiff requested the U.S. DOL reopen its investigation. (Id. at ¶ 48.) The U.S. DOL met with Defendant Goldhart's successor, Defendant Hageman, who also refused to promote Plaintiff. (Id. at ¶ 49-50.)

Plaintiff alleges that by virtue of their willful actions, Defendants discriminated against him in violation of USERRA because of his military status as a member of the United States Air Force, Ohio Air National Guard Reserves. (Id. at ¶ 51-69.)

In the pending Motion for Judgment on the Pleadings, Defendants seek dismissal of all claims against them, contending that the Court does not have jurisdiction to hear Plaintiff's claims because Federal courts do not have jurisdiction in USERRA actions brought by "a person" against a state, and because they are entitled to sovereign immunity pursuant to the Eleventh Amendment.

II. LAW AND ANALYSIS

A. Legal Standard

A motion for judgment on the pleadings is governed by the same legal standard as a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Almendares v. Palmer, 284 F.Supp.2d 799, 802 (N.D.Ohio 2003). The only difference between a Rule 12(c) paper and a Rule 12(b)(6) motion to dismiss is the timing of the motion. Id. Thus, as with a motion to dismiss, the Court must test the sufficiency of the complaint and determine whether, "accepting the allegations in the complaint as true and construing them liberally in favor of the plaintiff, the complaint fails to allege `enough facts to state a claim for relief that is plausible on its face.'" Ashmus v. Bay Vill. Sch. Dist. Bd. of Educ., 2007 WL 2446740, 2007 U.S. Dist. LEXIS 62208 (N.D.Ohio 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Claims alleged in the complaint must be "plausible," not merely "conceivable." Id. Dismissal is warranted if the complaint lacks an...