Helen Youngblood v. Bd. of Comm'rs of Mahoning Cnty.

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 17, 2021
• Docket: 19-3877
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0094n.06

No. 19-3877

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED HELEN YOUNGBLOOD, Feb 17, 2021 ) Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR BOARD OF COMMISSIONERS OF ) THE NORTHERN DISTRICT OF MAHONING COUNTY, OHIO, et al., ) OHIO Defendants-Appellees. ) ) )

BEFORE: MOORE, ROGERS, and READLER, Circuit Judges.

ROGERS, Circuit Judge. Helen Youngblood asserts that defendants’ hiring practices were

discriminatory. On behalf of a putative class of persons eligible for employment or advancement

at the Mahoning County Department of Job and Family Services, Youngblood raises due process

and equal protection claims under the Constitution, as well as a Title VII disparate impact racial

discrimination claim. Youngblood, in her individual capacity, also asserts a violation of the Ohio

Whistleblower Protection Act, claiming that defendants retaliated against her when she reported

her concerns about the Department’s hiring practices. The district court dismissed the case, and

this appeal primarily concerns two discrete questions: (1) whether Youngblood can avail herself

of whistleblower protections under Ohio law, and (2) whether the district erred by denying

Youngblood leave to amend her complaint. Because Youngblood did not strictly comply with the

provisions of the Ohio whistleblower law, the district court properly dismissed Youngblood’s

retaliation claim. The district court also acted well within its discretion when it did not permit No. 19-3877, Youngblood v. Bd. of Comm’rs of Mahoning Cnty., Ohio, et al.

Youngblood to amend her complaint because she had failed to show how she could cure her

pleading deficiencies.

Youngblood is an African American employee of the Mahoning County Department of Job

and Family Services, a subdivision of the State of Ohio. She also serves as an official

representative of the relevant collective bargaining unit. Youngblood alleges that, during a sixty-

month period, the director of the Department of Job and Family Services made a series of

promotional appointments without first posting the positions and hired individuals who did not

have the necessary qualifications. According to Youngblood, this is part of a pattern of “cronyism,

patronage, and racial discrimination” in the Department’s hiring practices—one that

disproportionately impacts Black employees, who “are less likely to have the political and

patronage network available to enable them to receive [such] preferential treatment.”

In August 2017, Youngblood brought a putative class action against the Department and

the Mahoning County Board of Commissioners asserting that the hiring practices were actionable

“under 42 U.S.C. [§] 1983 and the Fourteenth Amendment Due Process Clause.” The complaint

alleged only that promotional appointments were made without prior posting; that those who were

promoted were unqualified; and that such practices were a custom in the county and violated the

“federally protected property interests” of Youngblood and the putative class. After defendants

moved to dismiss, Youngblood moved for leave to file an amended complaint and attached a

proposed amended complaint. The district court granted Youngblood’s motion. This complaint

added an equal protection claim but offered no new factual allegations—only the conclusory

assertion that the allegedly unlawful hiring practices were racially discriminatory. Defendants

again moved for dismissal. While the motion to dismiss was being briefed, the parties stipulated

to the voluntary dismissal of the action without prejudice, and the court closed the case.

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In early 2019, Youngblood filed the complaint in this case, which was based on the same

alleged misconduct as that in the 2017 case. Youngblood expanded the class period and named

new defendants: Robert Bush, the director of the Department who made the hiring decisions at

issue here, and Melissa Wasko, a program administrator. In addition to the previously asserted

due process and equal protection claims, Youngblood also raised a racial discrimination claim

under Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e et seq., and one claim she

characterizes as respondeat superior (to hold the Commissioner Defendants and Mahoning County

liable for the alleged discrimination). Youngblood also separately raised an individual claim

against Bush and Wasko under the Ohio Whistleblower Protection Act, Ohio Rev. Code

Ann. § 4113.52. Specifically, she claimed that after she alerted Bush and Wasko that she believed

the Department had violated Ohio law, they responded by “engag[ing] in an unlawful campaign

of intimidation, disciplinary action and retaliation against [her].”

Youngblood’s complaint offered no additional details about the hiring practices. Relying

“[o]n information and belief,” Youngblood alleged only that the director of the Department made

promotional appointments without prior posting and hired unqualified recipients, which

disadvantaged similarly situated Black employees. Youngblood provided no information about

the employees who were hired under these practices or their qualifications. Nor did she identify

the eligible Black employees who were disproportionately impacted by the Department’s hiring

practices. The district court dismissed the complaint with prejudice for failure to state a claim.

The court’s opinion explained that Youngblood failed to specify whether her due process

claim was substantive or procedural but reasoned that, either way, the claim failed because

Youngblood did not identify a protected property interest and did not plead that the state’s

available post-deprivation remedies were inadequate. The district court also explained that

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Youngblood’s equal protection claim failed because Youngblood did not allege defendants acted

with discriminatory intent or purpose. The Title VII claim was deficient in part because

Youngblood failed to identify positions awarded under the hiring practices and to plead facts

“showing that the alleged policy had any negative effect on the protected class, let alone a

disproportionate effect.” Finally, the district court dismissed Youngblood’s claim under the Ohio

Whistleblower Protection Act because Youngblood did not report a covered offense, and she did

not do so in writing, as required by the statute. Throughout its opinion, the court emphasized that

the complaint was scant and devoid of factual allegations. The court denied Youngblood’s request

to amend her complaint because she failed to attach a proposed amended complaint or explain how

she could cure any pleading deficiencies. Youngblood appeals, arguing that the district court erred

in dismissing her whistleblower claim and that she should have been permitted to amend her

complaint.

The district court correctly held that Youngblood did not qualify as a whistleblower under

Ohio law. Youngblood neither alleged that she reported the type of offense covered by the Ohio

Whistleblower Protection Act nor that she did so in writing. Her failure to do so means she did

not strictly comply with the statute’s provisions and therefore cannot avail herself of its

protections. We review a district court’s grant of a motion to dismiss de novo. Ryan v. Blackwell,

979 F.3d 519, 524 (6th Cir. 2020).

Youngblood alleges that she “report[ed] to Defendants Bush and Wasko violations of Ohio

law concerning hiring, promotion and terminations within [the Department].” Such generalized

allegations of misconduct are insufficient for protection under the whistleblower law. According

to the statute, which lays out protected activities:

If an employee becomes aware in the course of the employee’s employment of a violation of any state or federal statute . . . that the employee’s employer has

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authority to correct, and the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety, a felony, or an improper solicitation for a contribution, the employee orally shall notify the employee’s supervisor or other responsible officer of the employee’s employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation.

Ohio Rev. Code Ann. § 4113.52(A)(1)(a) (emphasis added).1 As the district court pointed out,

nothing in Youngblood’s complaint suggests that she believed the alleged misconduct she reported

was a criminal offense likely to cause physical harm, a felony, or improper solicitation.

Youngblood does not even address this on appeal.

Youngblood also failed to communicate in writing the details of the allegedly unlawful

conduct. She maintains that, contrary to the plain text, the statute does not contain a written-report

requirement. Youngblood cites no other Ohio statutory provisions or Ohio cases declining to

enforce the clear requirement that a whistleblower must provide a written report that details the

alleged violation. (Indeed, Youngblood does not allege that she provided her employers with any

details, only that she informed them that she believed that their hiring practices violate Ohio law.)

She relies on Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S.

271, 277–78 (2009), but that case is inapposite because it addresses Title VII requirements and not

the Ohio whistleblower law. The Ohio Supreme Court has emphasized that “for an employee to

be afforded protection as a ‘whistleblower,’ such employee must strictly comply with the dictates

of [§] 4113.52. Failure to do so prevents the employee from claiming the protections embodied in

the statute.” Contreras v. Ferro Corp., 652 N.E.2d 940, 946 (Ohio 1995). The Ohio Supreme

1 Youngblood alleges that her whistleblower claims are “brought under § 4113.52,” but she does not cite a specific subsection. The district court referred to § 4113.52(A)(3) in its opinion, while defendants appear to assume Youngblood argues her claim fell under § 4113.52(A)(1)(a)—a contention Youngblood does not rebut. Regardless, Youngblood cannot claim protection under any of the relevant subsections: Section 4113.52(A)(2) also requires a violation of one of several specific provisions of the Ohio Code “that is a criminal offense,” while § 4113.52(A)(3) relates to reports of criminal violations committed by fellow employees, and it also requires a written report.

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Court has also refused to extend whistleblower protections where there was “no written report in

the record,” where an alleged report failed to “sufficiently identif[y] and describe[] any crimes,”

and where the alleged report was untimely. Lee v. Village of Cardington, 33 N.E.3d 12, 16 (Ohio

2014). Youngblood’s failure to allege that she reported her concerns in writing and her failure to

allege that she provided the necessary details are thus fatal to her whistleblower claim.

As for Youngblood’s other claim, the district court did not abuse its discretion when it

denied Youngblood’s request for leave to amend her complaint. See Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 437 (6th Cir. 2008) (providing

standard of review). To begin with, Youngblood did not file a motion for leave to amend. Instead,

in her opposition to the motion to dismiss, she briefly noted that, “[i]n the event the Court believes

the Complaint is insufficient in any respect, Plaintiff requests leave to file an amended Complaint.”

Federal Rule of Civil Procedure 15 provides that leave to amend should be “‘freely give[n]’ when

justice so requires,” Fed. R. Civ. P. 15(a)(2), and we typically “manifest[] ‘liberality in allowing

amendments to a complaint,’” Janikowski v. Bendix Corp., 823 F.2d 945, 951 (6th Cir. 1987)

(citations omitted)). We “disfavor,” however, a “bare request [to amend a complaint] in lieu of a

properly filed motion.” PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th Cir. 2004) (citing

Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000)), abrogated on other

grounds by Frank v. Dana Corp., 646 F.3d 954 (6th Cir. 2011). Such a request—almost an

afterthought—which provides no “indication of the particular grounds on which amendment is

sought[,] does not constitute a motion within the contemplation of [Federal Rule of Civil

Procedure] 15(a).” Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017) (quoting PR Diamonds,

364 F.3d at 699); see also La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th

Cir. 2010); Begala, 214 F.3d at 784 (6th Cir. 2000).

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Even if the liberal Rule 15 standard applied here in the absence of a formal motion, the

district court still had no way of concluding that justice required allowing Youngblood to amend

her complaint. Youngblood did not so much as “hint[] as to how an amended complaint could

potentially cure the pleading deficiencies.” District courts do not abuse their discretion when

movants do not present “facts to aid the court” in determining whether justice requires granting

leave to amend. Beydoun, 871 F.3d at 469 (quoting PR Diamonds, 364 F.3d at 699). As we

explained in Roskam Baking Co. v. Lanham Machinery Co., “implicit in [Rule 15] is that the

district court must be able to determine whether ‘justice so requires’ and in order to do this, the

court must have before it the substance of the proposed amendment.” 288 F.3d 895, 906 (6th Cir.

2002); see also United States ex rel. Harper v Muskingum Watershed Conservancy Dist., 739 F.

App’x 330, 335 (6th Cir. 2018). Even in her brief on this appeal, Youngblood does not indicate

what additional allegations would bolster her asserted constitutional and Title VII claims. Here,

as in Beydoun, Youngblood’s continued failure to show how an amended complaint can survive

dismissal renders her appeal meritless. See Beydoun, 871 F.3d at 470.

What is more, Youngblood had brought very similar claims alleging the same misconduct

in her 2017 action. There, she was given the opportunity to amend her complaint, which she did

before voluntarily dismissing the action. Even under the Rule 15 standard, the district court retains

discretion to deny leave to amend where there is “undue delay, bad faith or dilatory motive on the

part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, futility of the

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). This is particularly true here. This

2019 complaint was Youngblood’s third attempt to advance claims related to the Department’s

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allegedly discriminatory hiring practices, and Youngblood has shown a recurring inability to

bolster her legal conclusions with concrete factual allegations.

Finally, to the extent that Youngblood seeks to appeal the district court’s dismissal of her

equal protection and Title VII claims, she has forfeited those claims. In the background and

summary of the argument sections of her brief, Youngblood cursorily argues that the district court

erred in concluding her complaint failed to state an equal protection or Title VII claim because her

allegations were “sufficient to overcome the district Court conclusion [sic] there was no allegation

of racism.” She does not explain, however, how the district court erred. Nor does she cite any

relevant authority indicating why the district court’s reasoning was flawed. We need not consider

“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation.” Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir.

2000) (quoting United States v. Layne, 192 F.3d 556, 566–67 (6th Cir.1999)).2 We have

emphasized that a party cannot simply “mention a possible argument in the most skeletal way”—

as Youngblood does here—“leaving the court to . . . put flesh on its bones.” Hayward v. Cleveland

Clinic Found., 759 F.3d 601, 618 n.9 (6th Cir. 2014) (omission in original) (quoting McPherson

v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)). We therefore do not consider the merits of any

remaining claims.

The judgment of the district court is affirmed.

2 The court in Indeck concluded that such arguments are deemed waived. We have observed that we have often used “forfeiture” and “waiver” interchangeably, but they are distinct concepts. See, e.g., Brenay v. Schartow, 709 F. App’x 331, 336 n.1 (6th Cir. 2017). Here, Youngblood’s failure to explain how the district court erred in dismissing the equal protection and due process claims is likely forfeiture, see id. at 336–37, but regardless, we need not address such arguments.

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