Shoemake v. Mansfield City School District Board of Education (61 F. Supp. 3d 704, 2014)

United States District Court for the Northern District of Ohio 2014-11-20

Judiciary and Judicial Procedure

Citations

Full opinion text

ORDER

CHRISTOPHER A. BOYKO, District Judge.

This matter comes before the Court upon the Objections (ECF DKT #45) of Plaintiff, Jerome F. Shoemake, to Magistrate Judge Greg White’s Report and Recommendation (ECF DKT # 44). For the following reasons, the Report and Recommendation is affirmed in all respects and the Objections are overruled.

I. BACKGROUND

On November 15, 2013, the captioned case was referred to Magistrate Judge Greg White, pursuant to Local Rule 72.1, for pretrial supervision, including preparation of a report and recommendation regarding any case-dispositive motions. On September 15, 2014, the Magistrate Judge, among other matters, recommended that the Motion (ECF DKT # 31) of Defendant, Mansfield City School District Board of Education, for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction be granted in part and denied in part.

Plaintiff filed his pro se Complaint on November 12, 2013, alleging various federal and state law claims arising from the elimination of his position as a Special Education Specialist at the Mansfield City Schools. Specifically, the Complaint sets forth seven causes of action: (1) Retaliation and Unfair Labor Practices; (2) Retaliation; (3) Equal Contract Rights; (4) Due Process; (5) Disparate Impact re Nonteaching Staff in Pupil Services Department; (6) Misclassification of Non-teaching Employee; and (7)’ Statute of Limitations.

Although the Complaint is somewhat inartfully drawn, it appears to assert federal claims under 42 U.S.C. §§ 1981 and 1983; Title VII; and 18 U.S.C. § 1001. The Complaint also alleges violations of Ohio’s employment anti-discrimination statutes, set forth at Ohio Revised Code Chapter 4112; various state laws and regulations governing teacher contract rights; and state collective bargaining laws. In addition, Plaintiff appears to ask this Court to reverse the October 17, 2013 decision of the Ohio Civil Rights Commission (“OCRC”), finding no probable cause for the Commission to issue an administrative complaint against the Mansfield City School District for unlawful discrimination. He also seeks: (1) a Writ of Mandamus to compel Defendant to reinstate him and provide back pay and related benefits; and (2) an Order “remand[ing] the case for consideration to the Office of the Attorney General for litigation on grounds defendant has caused irreconcilable harm against plaintiff under the Ohio and United States Constitution on counts of violations to race, equal contract rights, due process and equal protection guarantees, and violation of Title 18 U.S.C. § 1001 for willfully lying to a federal investigator.” Finally, Plaintiff seeks declaratory and injunctive relief, compensatory damages and costs.

On April 4, 2014, Defendant filed a Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Fed.R.Civ.P. 12(c) and 12(b)(1).

Upon consideration of all the briefs and arguments, on September 15, 2014, the Magistrate Judge recommended that Defendant’s Motion be granted with respect to Plaintiffs claims under 42 U.S.C. § 1981; Title VII; and 18 U.S.C. § 1001, and Plaintiffs claims under 42 U.S.C. § 1988, that relate to his June 30, 2010 termination and any alleged acts of retaliation occurring before November 12, 2011. The Magistrate Judge recommended that Defendant’s Motion be denied with respect to Plaintiffs § 1983 claims for retaliation occurring within two years of the filing of the Complaint (i.e., subsequent to November 12, 2011); Plaintiffs state law claims for discrimination, retaliation, hostile work environment and disparate impact; and Plaintiffs claims under Ohio Revised Code § 3319.171.

Further, the Magistrate Judge recommended that Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction be (1) granted with respect to Plaintiffs request that this Court review the October 2013 decision of the OCRC; and (2) denied without prejudice with respect to Plaintiffs claims under Ohio Revised Code Chapter 4117.

In addition, the Magistrate Judge recommended that Plaintiffs requests for a Writ of Mandamus and remand to the Office of the Ohio Attorney General be denied.

On September 26, 2014, Plaintiff filed his Objections (ECF DKT #45), taking issue with four recommendations in the Magistrate Judge’s Report.

II. LAW AND ANALYSIS

Standard of Review

Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C), the District Court shall review de novo any finding or recommendation of the Magistrate’s Report and Recommendation to which specific objection is made. A party who fails to file an objection waives the right to appeal. U.S. v. Walters, 638 F.2d 947, 950 (6th Cir.1981). In Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), the Supreme Court held: “[i]t does not appear that Congress intended to require district court review of a magistrate judge’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”

Local Rule 72.3(b) recites in pertinent part:

The District Judge to whom the case was assigned shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.

(a). In his First Objection, Plaintiff insists that the Court cannot consider exhibits referenced by Defendant in its Motion for Judgment on the Pleadings. Plaintiff bases his Objection on the fact that, oh January 9, 2014, the Magistrate Judge struck from the record Plaintiffs two “Replies” to Defendant’s Answer, accompanied by hundreds óf pages of exhibits, as unauthorized pleadings. Now, Defendant refers, in its Motion, to Exhibit A, item b, attached to Plaintiffs Complaint, which includes correspondence from the EEOC to Shoemake. Plaintiff contends the Exhibit was stricken, constitutes matters outside the pleadings and cannot be considered unless the Court converts Defendant’s 12(c) Motion to a Motion for Summary Judgment.

Plaintiff is in error. First, the Magistrate Judge did not strike the exhibits attached to Plaintiffs Complaint; rather, the Magistrate Judge found fault with Plaintiffs unauthorized pleadings with voluminous attachments, identified as “Replies” to the Answer.

Second, 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. Therefore, when a court is presented with a Rule 12(b)(6) or a Rule 12(c) motion, it may consider the complaint and any exhibits attached to it, public records, items appearing in the record of the case, and exhibits attached to the motion to dismiss, as long as they are referred to in the complaint and are central to the plaintiffs claims. Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)) (emphasis added). See also Henry v. Chesapeake Appalachia, LLC, 739 F.3d 909, 912 (6th Cir.2014); Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.2008).

Therefore, the Magistrate Judge was justified in considering exhibits attached to, or referenced in, Plaintiffs Complaint; and there was no need for the Magistrate Judge to convert the 12(c) Motion to a summary judgment motion. Plaintiffs First Objection is overruled.

(b). In his Second Objection, Plaintiff asserts that Defendant District took inconsistent and varying positions before SERB, EEOC and this Court. Furthermore, Plaintiff insists that the doctrine of judicial estoppel bars Defendant from arguing one set of facts before one tribunal and another set of facts when it suits its advantage before another tribunal.

In his Report and Recommendation, the Magistrate Judge determined that the discrimination and retaliation claims filed with the EEOC were timé-barred because Plaintiff filed the instant lawsuit two years after his receipt of the right-to-sue letter. Also, the Magistrate Judge declined to address the nature and scope of SERB’S investigation into Plaintiffs charges until the facts are fully developed through the discovery process. Consequently, these agency decisions are not renewable.

Significantly, this is the first time that Plaintiff raises the doctrine of judicial estoppel. Failure to raise the issue before the Magistrate Judge constitutes waiver.

Courts have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent compelling reasons, it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate. Murr v. United States, 200 F.3d 895, 902 fn. 1 (6th Cir.2000), citing United States v. Waters, 158 F.3d 933, 936 (6th Cir.1998).

For these reasons, Plaintiffs Second Objection is overruled.

(c). In Plaintiffs Third Objection, he repeats his allegations that Defendant and defense counsel engaged in dishonesty, fraud, deceit and/or misrepresentation, in violation of 18 U.S.C. § 1001. Section 1001 is a federal criminal statute. “There is no authority to allow a private citizen to institute a criminal action in a federal court; that power is vested exclusively in the executive branch.” See United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Williams v. Finnegan, 2014 WL 2434590 at *2 (N.D.Ohio May 29, 2014). Consequently, there exists no independent, private cause of action for the alleged violation of 18 U.S.C. § 1001.

The Magistrate Judge, therefore, properly recommended dismissal of Plaintiffs claim under the criminal statute; so, Plaintiffs Third Objection is overruled.

(d). In his Complaint, Plaintiff makes a breach of contract claim, relating to the District’s alleged failure to pay him for unused vacation and sick leave. Defendant did not move for dismissal on that claim.

In his Fourth Objection, Plaintiff argues that he is entitled to summary judgment on the breach of contract claim and that the District failed to carry its burden of proof. Plaintiff is incorrect on both counts. Plaintiff bears the burden of proof if he intends to recover for breach of contract. Also, simply because a party does not move for dismissal of a claim and reserves argument until fact discovery is completed does not mean the opposing party deserves summary judgment in his favor. In footnote # 18 of the Report and Recommendation, the Magistrate Judge construed the Complaint as asserting a breach of contract claim. However, the Magistrate Judge also noted that Defendant did not move for judgment in that respect.

Plaintiffs breach of contract claim, though not clearly drawn, remains viable and involves facts outside the pleadings. The Fourth Objection is overruled.

III. CONCLUSION

For these reasons, Plaintiffs’ Objections are overruled and the Magistrate Judge’s Report and Recommendation (ECF DKT # 44) is adopted in its entirety.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

GREG WHITE, United States Magistrate Judge.

On November 15, 2013, this matter was referred pursuant to Local Rule 72.1 for pretrial supervision, including the preparation of a report and recommendation regarding any case-dispositive motions. (Doc. No. 3.) Currently pending before the Court are (1) Defendant Mansfield City School District Board of Education’s Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 31); (2) Plaintiff Jerome Shoemake’s “Motion for the Defendant to Withdraw Offending Claims Pursuant to Rule ll’s 21-day Safe Harbor Period” (Doc. No. 37); (3) Defendant’s Motion to Strike Plaintiffs “Motion for the Defendant to Withdraw Offending Claims” (Doc. No. 38); and, (4) Defendant’s “Second Motion to Strike” (Doc. No. 40.)

For the following reasons, Defendant’s Motions to Strike (Doc. Nos.38, 40) and Plaintiffs “Motion for Defendant to Withdraw Offending Claims” (Doc. No. 37) are DENIED. In addition, the Court recommends that Defendant’s Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction be GRANTED IN PART and DENIED IN PART.

I. Procedural Background

On November 12, 2013, Plaintiff Jerome Shoemake (hereinafter “Plaintiff’ or “Shoemake”) filed a pro se Complaint (Doc. No. 1) against the Mansfield City School District Board of Education alleging various federal and state law claims arising from the elimination of his position as a Special Education Specialist at the Mansfield City Schools. Specifically, the Complaint asserts the following seven causes of action: (1) “Retaliation and Unfair Labor Practices;” (2) “Retaliation;” (3) “Equal Contract Rights;” (4) “Due Process;” (5) “Disparate Impact re Nonteach-ing Staff in Pupil Services Department;” (6) “Misclassification of Nonteaching Employee;” and, (7) “Statute of Limitations.” (Doc. No. 1.)

Although the Complaint is not entirely clear, it appears to assert federal claims under 42 U.S.C. §§ 1981 and 1983; Title VII; and, 18 U.S.C. § 1001. The Complaint also alleges violations of Ohio’s employment anti-discrimination statutes, set forth at Ohio Revised Code Chapter 4112; various state laws and regulations governing teacher contract rights; and, state collective bargaining laws. In addition, Plaintiff appears to ask this Court to reverse the October 17, 2013 decision of the Ohio Civil Rights Commission (“OCRC”) finding no probable cause for the Commission to issue an administrative complaint against the Mansfield City School District for unlawful discrimination. (Doc. No. 1-1 at 6-7.) He also seeks (1) a writ of mandamus to compel Defendant to reinstate him and provide back pay and related benefits; and, (2) an order “remand[ing] the case for consideration to the Office of the Attorney General for litigation on grounds defendant has caused irreconcilable harm against plaintiff under the Ohio and United States Constitution on counts of violations to race, equal contract rights, due process and equal protection guarantees, and violation of Title 18 U.S.C. § 1001 for willfully lying to a federal investigator.” (Doc. No. 1 at ¶ 189.) Finally, Plaintiff seeks declaratory and injunctive relief, compensatory damages, and costs. (Doc. No. 1 at p. 60).

After receiving an extension of time to respond, Defendant filed an Answer on December 17, 2013. (Doc. No. 11.) Thereafter, and without leave of Court, Plaintiff filed two “Replies” to Defendant’s Answer, which together comprised 638 pages of text and 176 pages of exhibits. (Doc. Nos. 13, 18.) On January 9, 2014, this Court issued an Order striking Plaintiffs “Replies” and accompanying Exhibits as unauthorized pleadings. (Doc. No. 19.)

On April 4, 2014, Defendant filed a Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Fed.R.Civ.P. 12(c) and 12(b)(1). (Doc. No. 31.) Plaintiff timely filed a Brief in Opposition (Doc. No. 35), to which Defendant replied (Doc. No. 36.) Plaintiff then filed a “Motion for Defendant to Withdraw Offending Claims,” arguing (among other things) that Defendant had not timely filed its Reply Brief and should be sanctioned under Fed.R.Civ.P. 11. (Doc. No. 37.) Defendant moved to strike Plaintiffs motion on the grounds it was a “thinly-veiled” sur-reply which Plaintiff had not received authorization to file. (Doc. No. 38.) Plaintiff filed a Memorandum in Opposition (Doc. No. 39), which Defendant promptly moved to strike as another unauthorized sur-reply (Doc. No. 40.)

II. Factual Allegations

The Complaint contains the following allegations:

Plaintiff was hired as a teacher by the Mansfield City Schools in August 2000. (Doc. No. 1 at ¶ 14.) During the 2008-2009 and 2009-2010 school years, he was employed as a District Special Education Specialist. Id. at ¶¶ 15, 16. According to Plaintiff, a District Special Education Specialist “is a nonteaching position, which assists teachers in developing appropriate Individualized ' Education Programs (“IEPs”) and in developing appropriate lesson plans and effective lesson preparations based on particular IEPs, amongst other responsibilities.” Id. at ¶ 17. Plaintiff asserts he was an “exemplary employee” of the Mansfield City Schools for over ten years. Id. at ¶ 18. He states he received only positive performance reviews and never had a grievance or complaint filed against him. Id. at ¶¶ 19-20.

During the 2009-2010 school year, Defendant implemented an administrative reduction-in-force (“RIF”) “for alleged financial reasons.” Id. at ¶ 22. In May 2010, Plaintiff was notified his position was being eliminated as part of this RIF. Id. at ¶ 92. Plaintiff asserts the notification was untimely and, further, that Defendant violated state and federal law by failing to (1) “get input from plaintiff on the suspension policy;” (2) place him on a recall list; and/ or, (3) properly evaluate him or conduct a hearing prior to termination. Id. at ¶¶ 23, 30. Plaintiff was officially terminated on June 30, 2010. Id. at ¶ 32.

Plaintiff, who is African-American, asserts the RIF was a “subterfuge to. discriminate” against him. Id. at ¶ 36. He alleges that “defendant terminated plaintiff by way of job abolishment on June 30, 2010, while maintaining the job duties of the abolished position for a ‘handpicked’ junior white employee (Doug DeVito) to the present.” Id. at ¶ 32. He claims statistical analysis of the positions eliminated in his department (Pupil Services) constitutes “proof that the observed disparity between black nonteaching staff retention and non-black nonteaching staff retention in Pupil Services at Mansfield City Schools (defendant) were not due to chance.” Id. at ¶ 149. He also claims Defendant terminated him not because of the RIF, but in retaliation for complaining to the Superintendent about an incident where “[t]he school district treasurer wore a Confederate soldier uniform on multiple occasions, which he should have known would be offensive and degrading to plaintiff and other black employees of southern heritage.” Id. at ¶¶ 42-43.

On July 10, 2010, Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (“EEOC”), alleging racial discrimination, disability discrimination, and, retaliation. Id. at ¶ 57. Subsequently, on September 22, 2010, Plaintiff filed another Charge of Discrimination with the EEOC, alleging additional acts of retaliation. Id. at ¶ 58. The EEOC dismissed Plaintiffs charges on June 14, 2011. (Doc. No. 1-1 at 11-12.) Plaintiff thereafter requested reconsideration on the basis of statistical evidence which he believed demonstrated unlawful discrimination. Id. at 11. In a letter dated July 18, 2011, the EEOC advised Plaintiff that it had considered his statistical data but nonetheless determined that “our dismissal of your charge will remain in force.” Id. at 12. This letter also stated as follows:

You are reminded that the ninety (90) day time frame within which to file a lawsuit in federal district court is still in effect. The Dismissal and Notice of Rights was mailed to you on June 14, 2011. You must file your lawsuit by September 14, 2011 (or within 90 days of your receipt of the dismissal notice).

Id.

In September 2012, Plaintiff filed an unfair labor practice charge with the State Employment Relations Board (“SERB”) in which he claimed Defendant violated Ohio Revised Code § 4117.11(A)(8), (4) and (8) by discriminating against him. (Doc. No. 1 at ¶ 60; Doc. No. 1-1 at 9.) The SERB conducted an investigation and, on January 31, 2013, informed Plaintiff that “no probable cause existed to believe [Defendant] violated Ohio Revised Code § 4117.11.” (Doc. No. 1-1 at 9.) Plaintiff also filed a Charge of Discrimination with the Ohio Civil Rights Commission (“OCRC”), alleging Defendant had engaged in an unlawful discriminatory practice. (Doc. No. 1 at ¶ 60; Doc. No. 1-1 at 6-7.) After conducting an investigation, the OCRC informed Plaintiff on October 17, 2013 that it had found “no credible information supporting [his] allegations of unlawful activity.” (Doc. No. 1-1 at 6.)

Plaintiff asserts Defendant retaliated against him for filing the above charges. (Doc. No. 1 at ¶ 37, 60-61.) He claims that, from June 2010 through 2013, “employees of similar or lower status than plaintiff who did not file EEOC, SERB, and OCRC complaints against defendant have been hired by defendant for positions instead of plaintiff.” Id. at ¶ 62. Plaintiff further asserts that “[f]or example, defendant has refused to rehire plaintiff for positions for which he is qualified, including but not limited to positions [such] as tenured permanent building substitute teacher, non-tenured tutor, paraprofessional teacher aide, special education teacher, ALC teacher, and et al.” Id. at ¶ 61. See also Doc. No. 1 at ¶ 64. Plaintiff also claims Defendant refused to rehire him in retaliation for complaining about the alleged “multiple occasions” on which the school treasurer wore a Confederate soldier uniform. Id. at ¶ 42-43.

In addition, Plaintiff claims Defendant “lied to federal investigators” in violation of 18 U.S.C. § 1001 “by knowingly and willfully falsifying, concealing, and covering up by trick, material facts, and by making of false, fictitious, fraudulent statements both verbally and in writing, knowing the same to contain false, fictitious and fraudulent lies that plaintiff ... did not process [sic] sufficient credentials and/or was not similarly situated to continue in employment with Mansfield City Schools akin to newly hired ‘employment applicants’ and former employees recalled in accordance with O.R.C. § 3319.171(B)(3) restoration clause.” Id. at ¶ 71. He claims Defendant’s fraudulent misrepresentations regarding his credentials and qualifications constitute evidence of “pretext to cover up a discriminatory decision” and, therefore, violate Title VII, 42 U.S.C. §§ 1981 and 1983, the Fourteenth Amendment; and, state law. Id. at ¶¶ 83-84.

Finally, Plaintiff asserts Defendant violated both state and federal law when it (1) failed to compensate him for 9.008 days of unused vacation leave and 101.5 days of accrued sick leave; and, (2) extended his work obligation to eleven months in violation of his 183-day contract. Id. at ¶ 46, 49. He asserts that Defendant’s “adverse post employment decisions not to award deferred payment of earned benefits to JEROME F. SHOEMAKE, is an ongoing policy and pattern of discrimination of the same type continuing from outside the limitation period into the statutory limitation period under section 4112 of the Ohio Revised Code.” Id. at ¶ 48. Plaintiff claims Defendant’s conduct has been and “continues to be intentional and in wanton and reckless disregard to [his] rights and feelings,” in violation of state law; Defendants’ own policies; Title VII; and, 42 U.S.C. § 1981. Id. at ¶ 54.

III. Analysis

A. Plaintiffs “Motion for Defendant to Withdraw Offending Claims” and Defendant’s Motions to Strike

As noted above, Plaintiff filed his Complaint in this Court on November 12, 2013. (Doc. No. 1.) Defendant answered on December 18, 2013 (Doc. No. 11), and filed its Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 31) on April 4, 2014. Plaintiff mailed his memorandum in opposition on April 21, 2014, and it was docketed by this Court on April 22, 2014, (Doc. No. 35). Defendant replied on May 6, 2014. (Doc. No. 36.)

Thereafter, on May 15, 2014, Plaintiff filed a “Motion for the Defendant to Withdraw Offending Claims' Pursuant to Rule ll’s 21-Day Safe Harbor Period.” (Doc. No. 37.) Therein, Plaintiff argues (1) Defendant’s Reply Brief in support of its Motion for Judgment on the Pleadings is untimely filed pursuant to Local Rule 7.1(e); (2) Defendant should be sanctioned under Fed.R.Civ.P.' 11 for “presenting] a motion for improper purposes” and “wrongfully denying] factual allegations;” and, (3) Defendant’s Motion should be converted to a motion for summary judgment because it inappropriately relies on matters outside the pleadings. (Doc. No. 37.) In advancing the second of these arguments, Plaintiff purports to provide specific examples of Defendant’s allegedly merit-less arguments and then responds, at length, with additional reasons why Defendant’s Motion should be denied. Id. at 3-9.

In response, Defendant filed a Motion to Strike. (Doc. No. 38.) Defendant argues Plaintiffs Motion improperly alleges new facts and advances new legal theories, thus rendering it nothing more than a “thinly-veiled attempt to file” a surreply. Because Plaintiff failed to obtain prior authorization for filing a surreply as required by this Court’s Case Management Conference (“CMC”) Order (Doc. No. 21), Defendant maintains Plaintiffs Motion should be stricken in its entirety. Defendant also maintains its Reply Brief in support of its Motion for Judgment on the Pleadings is timely filed because Plaintiff mailed his Brief in Opposition on April 21, 2014 and, therefore, Defendant had three extra days for service. It also argues its Motion for Judgment on the Pleadings should not be converted to a motion for summary judgment because it relied only on certain exhibits attached to Plaintiffs Complaint, which are not considered matters outside the pleadings. Finally, Defendant argues it should not be subject to sanctions under Rule 11 and notes Plaintiff failed to comply with that Rule’s procedures.

Plaintiff then filed a “Memorandum in Support of Plaintiffs Motion for Sanctions against Defendant Pursuant to Rule 11.” (Doc. No. 39.) He maintains Defendant should be sanctioned and its Answer stricken because it asserted fraudulent misstatements of fact and advanced merit-less legal arguments. Plaintiff also claims Defendant’s Motion for Judgment on the Pleadings is unauthorized under the Federal Rules of Civil Procedure because it was filed after Defendant had already answered the Complaint. Id. at 14-15. Defendant responded by filing a “Second Motion to Strike.” (Doc. No. 40.)

1. Defendant’s Motions to Strike (Doc. Nos. 38, 40)

The Court declines to strike Plaintiffs Motion for Defendant to Withdraw Offending Claims (Doc. No. 37) and Memorandum in Support (Doc. No. 39). Although these filings do reargue the merits of Defendant’s Motion for Judgment on the Pleadings to a certain extent, they also raise additional issues such as the timeliness of Defendant’s Reply Brief; whether Defendant’s Motion should be converted to a motion for summary judgment; and, whether Defendant is subject to sanctions under Rule 11. In this respect, then, the Court does not consider Plaintiffs Motion and Memorandum to be entirely in the nature of an unauthorized sur-reply.

However, the Court will not consider Plaintiffs filings to the extent they re-argue the factual and legal issues raised in Defendant’s Motion for Judgment on the Pleadings. Plaintiff had the opportunity to, and did, file a Brief in Opposition to Defendant’s Motion. Moreover, if he felt an additional response was necessary, Plaintiff could have sought leave from this Court to file a sur-reply. He did not do so. Plaintiffs attempt to reargue the merits of Defendant’s Motion for Judgment on the Pleadings in the context of his motion for sanctions circumvents this Court’s Order requiring prior authorization for the filing of sur-replies, and unfairly deprives Defendant of an opportunity to respond. Accordingly, while the Court will not strike Plaintiffs motion and memorandum in their entirety, to the extent they rehash arguments previously made or raise new arguments in opposition to Defendant’s Motion for Judgment on the Pleadings they will not be considered.

2. Plaintiffs “Motion for Defendant to Withdraw Offending Claims” (Doc. No. 37)

In his Motion, Plaintiff first argues Defendant’s Reply Brief is untimely under Local Rule 7.1(e). That Rule provides that:

Unless otherwise ordered by the Judicial Officer, the moving party may serve and file a reply memorandum in support of any dispositive motion within fourteen (14) days after service of the memorandum in opposition and in support of any non-dispositive motion within seven (7) days after service of the memorandum in opposition. If the moving party was served with the memorandum in opposition under Fed.R.Civ.P. 5(b)(2)(C), (D), (E) or (F), three days shall be added to the prescribed period as provided in Fed.R.Civ.P. 6(d).

Local Rule 7.1(e). Federal Rule of Civil Procedure 5(b)(2)(C) provides for service by “mailing [the filing] to the person’s last known address — in which event service is complete upon mailing.”

Here, the Certificate of Service attached to Plaintiffs Brief in Opposition to Defendant’s Motion for Judgment on the Pleadings indicates it was mailed to Defendant by certified U.S. mail on April 21, 2014. (Doc. No. 35 at 20.) Thus, Defendant had seventeen days from that date to file its Reply; i.e. fourteen days plus an additional three days since Plaintiffs brief was served under Fed.R.Civ.P. 5(b)(2)(C). Thus, Defendant’s Reply Brief was due on May 8, 2014. Because Defendant filed its Reply on May 6, 2014, it was timely filed under Local Rule 7.1(e). Plaintiffs argument to the contrary is without merit.

Plaintiff next argues Defendant’s Motion for Judgment on the Pleadings should be converted to a motion for summary judgment because it relies on exhibits attached to the Complaint. Without citing any legal authority, Plaintiff summarily asserts that “[a] court cannot consider the exhibits attached to a Complaint without converting a Rule 12(B)(6) motion to a motion for summary judgment.” (Doc. No. 37 at 10.)

Plaintiff is incorrect. The Sixth Circuit has held that, although consideration of a motion for judgment on the pleadings under Rule 12(b)(c) rests primarily upon the allegations in the complaint, “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[ ] also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)) (emphasis added). See also Henry v. Chesapeake Appalachia, L.L.C., 739 F.3d 909, 912 (6th Cir.2014); Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.2008); Eakins v. Reid, 2012 WL 5451563 at *1 (N.D.Ohio Nov. 7, 2012). Thus, the Court may consider the exhibits attached to Plaintiffs Complaint without converting the Defendant’s Motion to a motion for summary judgment.

Finally, Plaintiff argues Defendant should be sanctioned under Fed.R.Civ.P. 11 because it “has presented a motion for ‘improper purposes,’ the claims in the motion are not supported by the evidence, and the Defendant wrongfully denies factual allegations.” (Doc. No. 37 at 3.) Defendant maintains it should not be sanctioned because (among other things) Plaintiff failed to comply with Rule ll’s “safe harbor” provision. That provision, set forth in Rule 11(c)(1)(A), provides that:

[a] motion for sanctions under this rule shall be made separately from other mo.tions or requests and shall describe the specific conduct alleged to violate [this rule]. It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Fed.R.Civ.P. 11(c)(1)(A) (emphasis added). Under this provision, a party seeking Rule 11 sanctions must first serve its motion on the opposing party in accordance with Fed. R.Civ.P. 5. See Ridder v. City of Springfield, 109 F.3d 288, 294 (6th Cir.1997); Jones v. TA Operating Corp., 2008 WL 495321 at *2 (E.D.Mich. Feb. 20, 2008). It must then wait until 21 days after service before filing the motion for sanctions with the Court, thereby providing the non-moving party an opportunity to cure the alleged sanctionable conduct. Ridder, 109 F.3d at 294.

As another decision from this district has explained, Rule ll’s “safe harbor” provision is a mandatory procedural requirement:

The requirements of Rule 11 are “absolute” and the Sixth Circuit demands “strict adherence to the Rule’s outlined procedure.” Ridder v. City of Springfield, 109 F.3d 288, 296-97 (6th Cir.1997). See also Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 384 (6th Cir.1997); Harnden v. Ford Motor Co., 408 F.Supp.2d 300, 308 (E.D.Mich.2004); Conz v. Lady, 2000 U.S. Dist. LEXIS 22137, at *18-19 (W.D.Mich. Jan. 25, 2000). This procedure includes both the form of the motion and the timing of its service and filing. See, e.g., Ridder, 109 F.3d at 293-97; Harnden, 408 F.Supp.2d at 308-09; Conz, 2000 U.S. Dist. LEXIS 22137, at *17-19; Neighbors Concerned about Yacht Club Expansion v. Grosse Pointe Yacht Club, 1999 WL 33656445, at *9-10, 1999 U.S. Dist. LEXIS 8646, at *29-30 (E.D.Mich. May 26,1999).

Compliance with Rule ll’s safe harbor provision is a mandatory procedural prerequisite to an award under the rule. Morganroth, 123 F.3d at 384. See also Harnden, 408 F.Supp.2d at 308; Conz, 2000 U.S. Dist. LEXIS 22137, at *20-21; Neighbors, 1999 WL 33656445, at *9, 1999 U.S. Dist. LEXIS 8646, at *28. Accordingly, the court does not consider the merits of a Rule 11 motion where the moving party fails to comply with the Rule’s safe harbor requirements. Morganroth, 123 F.3d at 384. See also Emery v. Mich. Dep’t of Corr., 1999 U.S. Dist. LEXIS 1400, at *12 (E.D.Mich. Jan. 13, 1999); Thorne v. Micklow, 1999 U.S. Dist. LEXIS 17109, at *23-24 (W.D.Mich. Oct. 22,1999).

Bosley v. WFMJ Television, Inc., 2006 WL 2474961 at *2-3 (N.D.Ohio Aug. 25, 2006). See also First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 511 (6th Cir.2002) (“This Court has expressly ruled that Rule 11 is unavailable where the moving party fails to serve a timely ‘safe harbor’ letter”); Uszak v. Yellow Transportation, Inc., 343 Fed.Appx. 102, 107 (6th Cir.2009); In re: Welding Fume Products Liability Litigation; 2006 WL 1173960 at *23 (N.D.Ohio April 5, 2006); Jones v. TA Operating Corp., 2008 WL 495321 at *2.

Here, Plaintiff failed to comply with Rule ll’s mandatory 21-day safe harbor requirements. According to the certificate of service attached to his motion, Plaintiff served his motion for sanctions on Defendant on May 14, 2014 by certified U.S. mail. (Doc. No. 37-1 at 1.) The motion itself was filed in this Court the next day, on May 15, 2014. (Doc. No. 37.) Plaintiff does not assert that he served the motion on Defendant’s counsel 21 days prior to filing it with this Court. Indeed, in his “Memorandum in Support of Plaintiffs Motion for Sanctions Against Defendant Pursuant to Rule 11,” Plaintiff acknowledges he sent the motion to defendant’s counsel on May 14, 2014. (Doc. No. 39 at 7.) As noted above, Rule 11 requires that a party moving for sanctions first serve its motion on opposing counsel in accordance with Rule 5, and then wait 21 days after service before filing it with the Court. See Rule 11(c)(1)(A); Ridder, 109 F.3d at 294; Jones, 2008 WL 495321 at *2. Plaintiff herein clearly failed to do so and, therefore, this Court cannot consider the merits of his motion or award sanctions as a matter of law. See First Bank of Mariet ta, 307 F.3d at 511; Ridder, 109 F.3d at 297.

Accordingly, and for all the reasons set forth above, Plaintiffs “Motion for the Defendant to Withdraw Offending Claims Pursuant to Rule ll’s 21-day Safe Harbor Period” is denied.

B. Defendant’s Motion for Judgment on the Pleadings

1. Standard of Review

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 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Deciding whether a complaint states a claim for relief that is plausible is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937.

Consequently, examination of a complaint for a plausible claim for relief is undertaken in conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the - pleader is entitled to relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.2009) (quoting in part Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)) (quoting Twombly, 127 S.Ct. at 1964). Nonetheless, while “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

2. Federal Claims

a. 42 U.S.C. § 1981

In the Complaint, Plaintiff asserts a variety of discrimination and retaliation claims pursuant to 42 U.S.C. § 1981. Defendant maintains Plaintiffs § 1981 claims should be dismissed because they are not cognizable against public municipal entities as a matter of law. (Doc. No. 31 at 21.) Rather, Defendant argues that “Section 1983 remains the exclusive federal remedy for Section 1981 violations by state entities or political subdivisions.” Id. Because Defendant is a political subdivision, it argues it is not subject to liability under § 1981 and Plaintiffs claims must be dismissed.

“Section 1981 prohibits racial discrimination in the making and enforcement of contracts.” McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir.2012) (citing Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976)). Specifically, that section provides as follows: 42 U.S.C. § 1981. Interpreting the above, the Sixth Circuit has held that § 1981 does not provide a private cause of action against governmental entities or state actors in their official or individual capacities. See Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir.2008); McCormick, 693 F.3d at 662. Rather, “ ‘the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.’ ” Arendale, 519 F.3d at 599 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Relying on this authority, district courts within this Circuit have consistently dismissed § 1981 claims brought against state and local governmental entities. See e.g. Wallace v. The MetroHealth System, 2013 WL 5739705 at *9-10 (N.D.Ohio Oct. 22, 2013); Chung v. Berkman, 2013 WL 4523513 at *5 (N.D.Ohio Aug. 26, 2013); Garceau v. City of Flint, 2013 WL 5954493 at *4-5 (E.D.Mich. Nov. 7, 2013); Jones v. City of Franklin, 2010 WL 2507771 at *12 (M.D.Tenn. June 18, 2010).

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Here, Defendant asserts it is a political subdivision and, therefore, Plaintiff may not maintain a § 1981 claim against it as a matter of law. The Court agrees. Pursuant to Arendale, the Court finds the exclusive federal remedy for Plaintiffs § 1981 claims against Defendant is 42 U.S.C. § 1983. Accordingly, the Court recommends that Plaintiffs § 1981 claims be dismissed.

b. Title VII

Defendant argues Plaintiffs Title VII discrimination and retaliation claims should be dismissed as time-barred. It notes that (1) Plaintiff was terminated on June 30, 2010; (2) he filed a charge of employment discrimination with the EEOC on July 13, 2010; and, (3) the EEOC dismissed Plaintiffs charge and mailed a right to sue letter to his home on June 14, 2011. Thus, Defendant maintains, Plaintiff had ninety days from June 14, 2011 (or until September 14, 2011) to file his Title VII claims in this Court. Because the instant Complaint was not filed until over two years later, on November 12, 2013, Defendant argues Plaintiffs Title VII claims are time-barred. (Doc. No. 31 at 18.)

It is well-established that a plaintiff must file a Title VII civil action in federal court -within ninety days after receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(l); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir.2000); Hollimon v. Shelby County Gov’t, 325 Fed.Appx. 406, 408-09 (6th Cir.2009). “The Sixth Circuit has resolved that notice is given, and hence the ninety-day limitations term begins running, on the fifth day following the EEOC’s mailing of a [right-to-sue] notification to the claimant’s record residential address, by virtue of a presumption of actual delivery and receipt within that five-day duration, unless the plaintiff rebuts that presumption with proof that he or she did not receive notification within that period.” Graham-Humphreys, 209 F.3d at 557 (emphasis in original).

• As the Sixth Circuit has explained, Title VIPs ninety-day statutory limit is strictly enforced:

The federal courts have strictly enforced Title VII’s ninety-day statutory limit. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), an opinion that dismissed a pro se Title VII complaint filed outside of limitations, the Supreme Court stated that “[procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Id. at 152, 104 S.Ct. 1723. In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Court further explained that “experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Id. at 826, 100 S.Ct. 2486. See also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

Graham-Humphreys, 209 F.3d at 557. See also Gui v. Inkster School Districts, 2013 WL 1282020 at *3 (E.D.Mich. March 27, 2013); Getachew v. Central Ohio Transit Authority, 2012 WL 1575997 at *2 (S.D.Ohio May 3, 2012); Williams v. Steak ‘N Shake, 2011 WL 3627165 at *2 (N.D.Ohio Aug. 17, 2011); Lacheta v. Madison County Hospital, 2009 WL 3515378 at *1 (S.D.Ohio Oct. 28, 2009). “As such, dismissal of a complaint filed after ninety days of receiving the EEOC right-to-sue letter is appropriate even where a plaintiff proceeds pro se because the plaintiff still has ‘a responsibility to meet the requirements of the law.’ ” Williams, 2011 WL 3627165 at *2 (quoting Lomax v. Sears, Roebuck & Co., 2000 WL 1888715 at *6 (6th Cir. Dec. 19, 2000)).

Here, Plaintiff was terminated on June 30, 2010 and filed a charge of discrimination with the EEOC on July 10, 2010. Id. at ¶ 32, 57. Plaintiff does not attach a copy of this charge as an exhibit to his Complaint, but he alleges that it asserted claims of “race discrimination, disability discrimination, and retaliation.” Id. at ¶ 57. On September 22, 2010, Plaintiff filed “an additional Charge of Discrimination with the EEOC, alleging additional retaliation.” Id. at ¶ 58. According to an Exhibit attached to the Complaint, the EEOC mailed a “Dismissal and Notice of Rights” to Plaintiff on June 14, 2011. (Doc. No. 1-1 at 11-12.)

On or about July 3, 2011, the EEOC received a request for reconsideration, in which Plaintiff argued the Commission had failed to consider relevant statistical evidence and/or had “misinterpreted the law.” Id. at 11. On July 18, 2011, the EEOC mailed a letter to Plaintiff in which it denied his request for reconsideration and affirmed the original dismissal of his charge. Id. at 12. Therein, the EEOC reminded Plaintiff of the ninety-day time limit for filing federal suit, as follows:

You are reminded that the ninety (90) day time frame within which to file a lawsuit in federal district court is still in effect. The Dismissal and Notice of Rights was mailed to you on June 14, 2011. You must file your lawsuit by September 14, 2011 (or within 90 days of your receipt of the dismissal notice).

Id. at 12.

As noted above, the Sixth Circuit has determined the ninety-day time limit begins to run on the fifth day following the EEOC’s mailing of a right-to-sue letter to the claimant’s residential address, “unless the plaintiff rebuts that presumption with proof that he or she did not receive notification within that period.” Graham-Humphreys, 209 F.3d at 557. Here, Plaintiff makes no argument regarding receipt of the notification within five days after the EEOC mailed the June 14, 2011 Dismissal and Notice of Rights; i.e., by Monday, June 20, 2011. Thus, the ninety-day time limit began to run on June 20, 2011 and expired on Monday, September 19, 2011. Plaintiff did not file his Complaint until over two years later, on November 12, 2013. (Doc. No. 1.)

In his Brief in Opposition, Plaintiff states he received another right-to-sue letter from the EEOC on April 9, 2014 and attaches a copy of that letter to his Brief as an Exhibit. (Doc. No. 35 at 5; Doc. No. 35-1.) He then argues, summarily and without any explanation, that “[t]herefore, Plaintiff has standing to file in Federal or State court under Federal Law against Mansfield City School District Board of Education.” (Doc. No. 35 at 5.)

Giving the pro se Plaintiff every benefit of the doubt, the Court construes Plaintiffs reference to the April 9, 2014 EEOC letter as arguing this right-to-sue .letter renders his federal claims timely. The Court rejects this argument. The Complaint does not clearly allege that Plaintiff filed an EEOC charge subsequent to his June and September 2010 charges, or (assuming he did so) the basis of such subsequent charges. The EEOC’s April'9, 2014 “Dismissal and Notice of Rights” letter also does not indicate the basis of Plaintiffs charge, stating only that “[t]he EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.” (Doc. No. 35-1 at 1.) This appears to be a reference to the OCRC’s October 17, 2013 Letter of Determination finding no probable cause to issue an administrative complaint accusing Defendant of an unlawful discriminatory practice. This Letter, which is attached as an Exhibit to the Complaint, rejected Plaintiffs charge as follows:

After receiving the charge, the Commission conducted an investigation into Charging Party’s allegation against Respondent. During its investigation, the Commission gathered relevant information. Based upon its investigation, the Commission found no information or records that would .raise an inference that Respondent unlawfully discriminated against Charging Party. Specifically, the Commission found that Charging Party’s layoff issue is untimely and has been addressed in a prior charge. In addition, Charging Party was not denied hite to the positions he sought due to his race or in retaliation for filing prior charges with the Commission. The Charging Party was either unqualified or failed to contact Respondent for possible employment opportunities. This is a legitimate nondiscriminatory reasorl. The Commission finds no credible information supporting. Charging Party’s allegation of unlawful activity.

(Doc. No. 1-1 at 6.)

Based on the above, and in the absence of any allegations from Plaintiff to the contrary, it' appears the charge that formed the basis of the EEOC’s April 2014 right-to-sue letter reiterated the same charges of discrimination and retaliation that formed the basis of his June and September 2010 charges. The Sixth Circuit has held that “Title VII does not allow a plaintiff who misses the 90-day window to resurrect the same claims by including them in a new EEOC charge, restarting the process and resetting the limitations clock.” Hollimon, 325 Fed.Appx. at 409-10. See also Adams v. Tenn. Dep’t of Fin. & Admin., 179 Fed.Appx. 266, 271 (6th Cir.2006). Thus, the fact that Plaintiff may have filed a later EEOC charge that restated his discrimination and retaliation claims does not serve to toll or restart his ninety-day filing time limit.

In a further attempt to evade the ninety-day filing mandate, Plaintiff also appears to argue his Title VII claims are, in fact, brought pursuant to 42 U.S.C. § 1981 and therefore subject to that statute’s period of limitations, which he claims is four years. (Doc. No. 1 at ¶¶ 192-197.) The Court rejects this argument. As addressed above, § 1981 does not provide a private cause of action against governmental entities. See Arendale, 519 F.3d at 598-99. Plaintiff cites no authority indicating that, despite this well-established rule of law, § 1981 may nevertheless provide the limitations period for his Title VII claims. Plaintiffs argument on this issue is wholly without merit.

Finally, the Court notes the Complaint alleges Defendant has “engaged in a ‘continuing violation’ ... because said Defendant has committed constitutional impermissible acts of discrimination, from outside the limitations period into the statutory limitations period.” (Doc. No. 1 at ¶¶ 2, 40, 48, 168.) While the continuing violation doctrine may serve to toll the statutory period within which to file a complaint with the EEOC, the Sixth Circuit has expressly held that this doctrine “does not relieve a plaintiff of the need to file an action within 90 days of receiving the right to sue letter.” Wade v. Knoxville Utilities Bd., 259 F.3d 452, 461 (6th Cir.2001). See also Clark v. Nissan Motor Mfg. Corp. U.S.A., 1998 WL 786892 at *5 (6th Cir. Oct. 26, 1998); Austion v. City of Clarks-ville, 244 Fed.Appx. 639, 648-49 (6th Cir.2007); Hollowell v. Michigan Consolidated Gas Company, 18 Fed.Appx. 332, 337-38 (6th Cir.2001); Gay v. Teleflex Automotive, 2008 WL 896946 at *6 (N.D.Ohio March 28, 2008). Thus, the Court finds Plaintiffs failure to file the instant action within ninety-days of receiving his right-to-sue letter cannot be excused by the continuing violation doctrine.

Accordingly, and for all the above reasons, the Court finds Plaintiff filed his Complaint well beyond the ninety-day period allowed in 42 U.S.C. § 2000e — 5(f)(1) and, therefore, recommends his Title VII claims be dismissed as time barred.

c. 42 U.S.C. § 1983

To maintain a claim under § 1983, a plaintiff must establish that he was deprived of a right secured by the Constitution or the laws of the United States, and that the deprivation was caused by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Simescu v. Emmet County Dep’t of Soc. Services, 942 F.2d 372, 374 (6th Cir.1991). Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Baker, 443 U.S. at 140, 99 S.Ct. 2689.

The Complaint is not a model of clarity, but it appears Plaintiffs § 1983 claims fall into two general categories. The first consists of alleged due process violations arising out of Plaintiffs termination on June 30, 2010. This appears to include Defendant’s decision to terminate Plaintiff as part of the RIF, as well as the alleged failure to accord Plaintiff certain due process protections prior to termination. See e.g. Doc. No. 1 at ¶¶ 5, 89, 117-120. The second category consists of Plaintiffs claim that Defendant violated his constitutional rights by failing to recall or restore him to employment in retaliation for (1) filing charges with the EEOC, OCRC, and SERB; and, (2) complaining about multiple incidents in which the school treasurer allegedly wore a Confederate soldier uniform. See e.g. Doc. No. 1 at ¶¶ 42-43, 60-85, 87.

Defendant argues Plaintiffs § 1983 claims are time-barred because he was terminated on June 30, 2010 but failed to file his Complaint until over three years later, on November 12, 2013. (Doc. No. 31 at 18.) Defendant further maintains Plaintiff fails to plausibly allege continuing violations under § 1983 because the decision not to recall or rehire him “is a discrete— not an ongoing — act [and therefore] cannot serve to extend the statute of limitations.” Id. at 19. Accordingly, Defendant maintains this Court should dismiss “all claims referencing Section 1983 [or] Due Process ....” Id.

The Sixth Circuit has repeatedly held that Ohio’s two year statute of limitations for personal injury actions applies to § 1983 claims arising in Ohio. See LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1105 (6th Cir.1995); Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.1989) (en bane); Huntsman v. Perry Local Schools Board of Education, 379 Fed.Appx. 456, 461 (6th Cir.2010). See also Getachew v. Central Ohio Transit Authority, 2012 WL 1575997 at *2 (S.D.Ohio May 3, 2012). Here, it is undisputed that Plaintiff was terminated on June 30, 2010. (Doc. No. 1 at ¶ 32.) Because he did not file his Complaint until November 12, 2013, any § 1983 claims relating to his termination (or the alleged failure to accord him certain due process protections prior to termination) are time-barred and subject to dismissal as a matter of law. Moreover, any alleged acts of retaliation that occurred before November 12, 2011 (i.e., two years prior to the filing of the Complaint) are similarly time-barred.

However, Plaintiff claims that Defendant continues to retaliate against him by failing to either recall, restore, or rehire him for employment. Specifically, the Complaint alleges Plaintiff “had eligibility re ’24 month recall’ by virtue of his being impacted by a reduction in force under O.R.C. § 3319.171(3)(B)” but “was treated differently on account of filing discrimination charges against defendant and was never recalled for positions he could perform due to retaliation for filing various discrimination charges over said 24-month recall period.” Id. at ¶ 37. He states he “was not recalled to work while OTHER employees — including newly hired employee applicants — of a similar or lower status than plaintiff have been hired and/or made-whole under defendant’s suspension restoration policy.” Id. at ¶ 39. Plaintiff further claims Defendant “has refused to rehire plaintiff for positions for which he is qualified, including but not limited to positions [such] as tenured permanent building substitute teacher, non-tenured tutor, paraprofessional teacher aide, special education teacher, ALC teacher, and et al. during 2010, 2011, 2012, and 2013.” Id. at ¶ 61. He states that “candidates with similar credentials have been selected as special education teachers, tutors, paraprofessional teacher aides and et al. from 2010-2013.” Id. at ¶ 70. The Complaint then identifies ten specific individuals whom Plaintiff claims were hired by Defendant for these positions between 2010 and 2013. Id. at ¶ 70.

Based on the above, Plaintiff alleges Defendant “is currently in retaliation against plaintiff on account of his filing with the EEOC, State Employment Relations Board (SERB) September 2012, and Ohio Civil Rights Commission (OCRC) complaint February 15, 2013.” Id. at ¶ 60. He further claims Defendant “foster[s] retaliatory actions towards plaintiff with regard to continued job opportunities as an applicant for hire” because he complained about “multiple occasions” on which the school district treasurer wore a Confederate soldier uniform. Id. at ¶ 42-43.

Defendant argues, summarily, that “[f]ailure to recall, like failure to hire, is a discrete act, not an ongoing violation” and, therefore, Plaintiff had until June 30, 2012 to file suit for Defendant’s alleged failure to recall him. (Doc. No. 31 at 19.) Defendant, however, cites no legal authority for this particular proposition. Moreover, the nature and timing of Defendant’s recall decisions are not evident from the face of the pleadings. Defendant does not address, for example, Plaintiff’s claim that he was subject to retaliation during an alleged “24 month recall period.” Accepting as true Plaintiffs allegations that there was, in fact, a 24 month recall period applicable to him, it would have presumably expired in June 2012, which is within § 1983’s two year statute' of limitations period.

Thus, the Court is unable to determine at this stage of the litigation that all of Plaintiffs § 1983 claims for retaliation are time-barred. The Court therefore recommends Defendant’s Motion for Judgment on the Pleadings be denied with respect to these claims.

d. 18 U.S.C. § 1001

Plaintiff also claims Defendant “lied to federal investigators” in violation of 18 U.S.C. § 1001 when it allegedly told the EEOC that he did not possess “sufficient credentials and/or was not similarly situated to continue in employment with Mansfield City Schools akin to newly hired ‘employment applicants’ and former employees recalled in accordance with O.R.C. § 3319.171(B)(3) restoration clause.” (Doc. No. 1 at ¶ 71.)

To the extent Plaintiff intends to assert a cause of action under 18 U.S.C. § 1001, the Court recommends it be dismissed. It is well-established that Section 1001 is a federal criminal statute and does not provide a private cause of action. See Massey v. Bank of Edmondson County, 49 Fed.Appx. 604 (6th Cir.2002); Williams v. Finnegan, 2014 WL 2434590 at *2 (N.D.Ohio May 29, 2014); Minnesota Life Ins. Co. v. Cole, 2013 WL 1858132 at *4 (N.D.Ohio May 2, 2013); DuBose v. Kasich, 2013 WL 1711610 at *1 (S.D.Ohio April 19, 2013); Kelly v. City of New Philadelphia, 2011 WL 3705151 at *2 (N.D.Ohio Aug. 22, 2011); Nicole Energy Services, Inc. v. McClatchey, 2010 WL 55718 at *6 (S.D.O