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09/28/12 EEOC Response & Exhibits
 

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    09/28/12 EEOC Response & Exhibits 09/28/12 EEOC Response & Exhibits Document Transcript

    • RESPONSE TO AUGUST 29, 2012 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LETTER FROM WILMA L. JAVEY - - REITERATION TO BE NOTIFIED OF ANY/ALL CONFLICT-OF INTERESTS1 Submitted September 28, 2012SUBMITTED TO: VIA U.S. PRIORITY MAIL – RECEIPT NO. 0311 2550 0003 1737 3108 United States Department of Labor U.S. Equal Employment Opportunity Commission (“EEOC”) ATTN: U.S. Secretary of Labor – Hilda L. Solis Frances Perkins Building 200 Constitution Ave., NW Washington, DC 20210 VIA U.S. PRIORITY MAIL – RECEIPT NO. 0311 0240 0001 0055 0473 Ohio Civil Rights Commission (“OCRC”) Central Office ATTN: G. Michael Payton, Esq. (Executive Director) 30 East Broad Street, 5th Floor Columbus, Ohio 43215EEOC COMPLAINT(S): Charge No. 473-2012-00832 (The Garretson Firm Resolution Group, Inc.) Charge No. 473-2012-00837 (Messina Staffing/Messina Management Systems) 1 Newsome relied upon legal resources (i.e. such as PREVIOUS EEOC DECISIONS, PREVIOUS OHIO CIVIL RIGHTSCOMMISSION DECISIONS, EEOC Compliance Manual, United States Code Annotated, Supreme Court of the United States decisions,United States District Court(s) – Ohio decisions, etc.) in the preparation of this Response. Boldface, underline, italics, HIGHLIGHTS,caps/small caps added for emphasis. Page 1 of 9
    • Complainant/Employee: Vogel Denise Newsome (“Newsome”) Post Office Box 14731 Cincinnati, Ohio 45250 Phone: (513) 680-2922Respondent(s)/ The Garretson Firm Resolution Group, Inc.Employer(s): Attn: Sandy Sullivan (Human Resources Representative) Attn: Matthew Garretson (Founder/Chief Executive Officer) 7775 Cooper Road Phone: (513) 575-7167 or (513) 794-0400/(888) 556-7526 County: Hamilton County, Ohio **Ohio Office Having 50+ employees Messina Staffing/Messina Management Systems Attn: Vince Messina (President) 11811 Mason-Montgomery Road Cincinnati, Ohio 45249 (513) 774-9187 COMES NOW Complainant Vogel Denise Newsome (“Newsome) and submits this her “RESPONSE TOTHE AUGUST 29, 2012 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LETTER FROM WILMAL. JAVEY - - REITERATION To Be NOTIFIED Of ANY/ALL CONFLICT-OF-INTERESTS”(“RT082912EEOCLetter”) in regards to the above referenced Equal Employment Opportunity Commission(“EEOC”) Complaints and the “OFFICIAL COMPLAINT/CHARGE OF DISCRIMINATION FILED OF AND AGAINST THE GARRETSON FIRM RESOLUTION GROUP INC. AND/OR MESSINA STAFFING/MESSINA MANAGEMENT SYSTEMS WITH UNITED STATES DEPARTMENT OF LABOR - UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION – CINCINNATI AREA OFFICE and OHIO CIVIL RIGHTS COMMISSION – CENTRAL OFFICE; AND REQUEST FOR COMMISSIONER CHARGE TO BE ISSUED SUBMITTED FOR FILING ON APRIL 30, 2012” (hereinafter “Official Complaint/Charge Of Discrimination”)in these actions. Attached please find a copy of the EEOC’s letter dated August 29, 2012, from Wilma L. Javey (Director –Cincinnati, Ohio Area Office) at EXHIBIT “A” attached hereto and incorporated by reference. In accordance with the statutes and laws governing said matters, this instant “RT082912EEOCLetter” issubmitted to support Newsome’s TIMELY response as well as for purposes of PRESERVING issues raised in the“Official Complaint/Charge Of Discrimination” and those in her subsequent filings/responses. Secretary Hilda Solis, as you know, Newsome DEMANDED “to be advised of the „STATUS‟ of theMANDATORY Deferral of this instant Equal Employment Opportunity Commission Complaint/Charge to the Page 2 of 9
    • Ohio Civil Rights Commission pursuant to 29 § 1601.13 and other statutes/laws governing said matters. Forinstance 29 § 1604.8 addresses how matters are to be handled that involves claims falling within the jurisdiction ofthe EEOC and the Ohio Civil Rights Commission” and provided a link of the referenced Statute (29 § 1604.8)should there be any questions at: http://www.slideshare.net/VogelDenise/29-cfr-16048-processingcompltateagency-highlighted; however, to date, you have DELIBRATELY with MALICIOUS intentFAILED to DEFER the Complaint(s) to the Ohio Civil Rights Commission. As a matter of FEDERALStatutes/Laws, Secretary Solis, you are MANDATORILY required to refer/defer Newsome’s Complaints/Charges: Charge No. 473-2012-00832 (The Garretson Firm Resolution Group, Inc.) Charge No. 473-2012-00837 (Messina Staffing/Messina Management Systems)to the Ohio Civil Rights Commission. In further support of this instant “RT082912EEOCLetter” the followingFACTS remain UNDISPUTED and, therefore, sustains that yours and the EEOC’s actions are ARBITRARYand/or CAPRICIOUS Newsome states: a) That the Equal Employment Opportunity Commission HAS Jurisdiction over Newsome’s Charge/Complaint and that it has been TIMELY FILED. b) That DEFERRAL of Newsome’s Charges/Complaints to the Ohio Civil Rights Commission because it involves claim(s) of AGE DISCRIMINATION, etc.; therefore, deferral is MANDATORY and NOT a discretionary act to be determined by neither you NOR the EEOC. Nevertheless, the EEOC has WITH MALICIOUS intent FAILED to defer Newsome’s Charge/Complaint to the Ohio Civil Rights Commission which has cause Newsome IRREPABLE injury/harm and deprived her rights secured/guaranteed under the Civil Rights Act, United States Constitution and other statutes/laws governing said matters. Moreover, depriving Newsome EQUAL protection of the laws, EQUAL privileges and immunities under the laws and DUE PROCESS of laws. c) Secretary Solis, while you are DELIBERATELY and with MALICIOUS intent attempting to get Newsome to file a Civil Action in Federal Court in regards to her Complaints/Charges, said Court(s) LACK jurisdiction act as stated in Newsome’s June 21, 2012 pleading entitled, ADMINISTRATIVE PROCEDURE ACT REQUESTS: MANDATORY DEFERRAL TO THE OHIO CIVIL RIGHTS COMMISSION PURSUANT TO 29 CFR §1601.13/1604.8 AND OTHER GOVERNING STATUTES/LAWS, MANDATORY COMMISSIONER CHARGE TO ISSUE PURSUANT TO 29 CFR § 1601.6 AND OTHER GOVERNING STATUTES/LAWS, AND MANDATORY FINDINGS OF FACT CONCLUSION OF LAW REQUESTED PURSUANT TO OHIO REVISED CODE § 2315.19/FEDERAL RULES OF CIVIL PROCEDURE RULE 52 AND OTHER GOVERNING STATUTES/LAWS – COURT’S LACK OF JURISDICTION FOR FAILURE TO DEFER; REITERATION OF OBJECTIONS AND REITERATION FOR REQUESTS TO BE ADVISED OF ALL “CONFLICT-OF-INTERESTS” (“RT06-14-12EEOCLetter”) Page 3 of 9
    • A copy of which may also be obtained from the Internet at: http://www.slideshare.net/VogelDenise/062112-response-to-eeoc-061412-letter Secretary Solis, according to the United States Postal Service records, supporting delivery: http://www.slideshare.net/VogelDenise/062112-usps-proof-of-mailing-receipt-hilda-solis-g- michael-payton Wherein Newsome incorporates by reference the same defenses set forth in her June 21, 2012 pleading and previous filings. Morris v. Kaiser Engineers, Inc., 471 N.E.2d 471 (Ohio,1984) – State filing is a mandatory prerequisite to Age Discrimination in Employment Act action. Age Discrimination in Employment Act of 1967, § 14, 29 U.S.C.A. § 633. Piecuch v. Gulf & Western Mfg. Co., 626 F.Supp. 65 (N.D.Ohio.E.Div.,1985) - District court lacked jurisdiction over age discrimination action, where plaintiff had not filed his charge with Ohio Civil Rights Commission. Age Discrimination in Employment Act of 1967, § 14(b), 29 U.S.C.A. § 633(b). Furthermore see the following case law: Ruth Dunn vs. Medina General Hospital, 917 F.Supp. 1185 (N.D. Ohio 1996) - [3] Ohio is deferral state within meaning of statute mandating that in deferral states, i.e. states where established agencies are empowered to remedy age discrimination in employment, person may not bring suit in federal court under ADEA unless person has commenced proceeding with appropriate state agency. Age Discrimination in Employment Act of 1967, § 14(b), 29 USCA § 633(b). . . . [3] The Supreme Court has held that 29 U.S.C. § 633(b) mandates that in states where established agencies are empowered to remedy age discrimination in employment (deferral states), a person may not bring a suit in federal court under the ADEA unless she has commenced a proceeding with the appropriate state agency. Oscar Mayer and Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (emphasis added). . . .Ohio is a deferral state within the meaning of § 14(b) of the ADEA. Brownlow v. Edgcomb Metals Co., 573 F.Supp. 679, 683 (N.D.Ohio 1983). EXHIBIT “B” attached hereto and incorporated by reference as if set forth in full herein.d) Under the Federal Rules of Civil Procedure (“FRCP”) Rule 11, Newsome is PROHIBITED from bring a Lawsuit in which it is KNOWN to her as well as the EEOC and parties involved that the Court(s) LACK Jurisdiction. Furthermore, Newsome as a matter of the FRCP is MANDATORILY required to MITIGATE damages and the filing of a Lawsuit in which you (Secretary Solis) and the EEOC is FULLY aware of CANNOT be filed for LACK of Jurisdiction because of your DELIBERATE and MALICIOUS FAILURE to defer/refer the Complaints/Charges regarding this instant matter to the Ohio Civil Rights Commission.e) UNDISPUTED are the statutes/laws governing said matters supporting that the EEOC is MANDATORILY required to defer Newsome’s Complaints/Charges to the Ohio Civil Rights Commission for COST-EFFICIENT purposes and handling. However, Secretary Solis, you and the EEOC have FAILED to comply and are in violation of the Administrative Procedure Act and other statutes/laws governing said issues. The Ohio Federal Court(s) are clear on the MANDATORY requirements of DEFERRAL/REFERRAL. See for instance the following case(s): Page 4 of 9
    • Alsup vs. International Union of Bricklayers, 679 F.Supp. 716 (N.D. Ohio 1987) - [11] In “deferral states” such as Ohio, where the EEOC defers to the state agency established to investigate charges of discrimination, an EEOC charge must be filed within 300 days after the alleged unlawful act. Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1). [12] When a charge of discrimination is submitted to both the Equal Employment Opportunity Commission and state agency in a “deferral state,” the EEOC will not formally file its charge of discrimination until after the state agency has terminated its proceedings or 60 days have elapsed since filing of state administrative charge, whichever occurs earlier; therefore, state administrative charge of discrimination must generally be filed within 240 days of the alleged unlawful practice in order to preserve claimants right to file a Title VII lawsuit in federal court. Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1).See EXHIBIT “C” attached hereto and incorporated by reference as if set forth in fullherein. In the May 9, 2012 correspondence from the Ohio Civil Rights Commission’sSandra R. Aukeman, it ERRONOUSLY stated that Newsome’s Complaint/Charge wasUNTIMELY filed in that it applied the 180-DAY/SIX MONTHS statute of limitations,stating, "The Ohio Civil Rights Act, Ohio Revised Code Chapter 4112, requires that a charge of discrimination be filed within six months of the date of harm and therefore the charge is deemed untimely for us to pursue. Your letter to us indicates both the Ohio Civil Rights Commission and the U.S. Equal Employment Opportunity Commission received identical documentation. Charges may be filed with the U.S. Equal Employment Opportunity Commission within 300 days from the date of harm and therefore could be considered timely filed with them. Our agency, the Ohio Civil Rights Commission, is the state admiinistrative law enforcement agency that administers the Ohio Civiil Rights Act, Ohio Revised Code Chapter 4112 and we are responsible for investigating charges of RACE, color, sex, national origin, military status, disability, AGE and religion discrimination in the areas of employment . . ."See EXHIBIT “D” attached hereto and incorporated by reference as if set forth in fullherein. The Supreme Court of the United States’ decision in Oscar Mayer & Co. vs. JosephEvans, 99 S.Ct. 2066 (1979) is clear that: [2] Though the Age Discrimination in Employment Act makes resort to administrative remedies mandatory in states with agencies empowered to remedy age discrimination in employment, a person aggrieved by alleged age discrimination is not required by the ADEA to commence the state proceedings within the time limit specified by state law. Age Discrimination in Employment Act of 1967, §§ 7(c), 14(b), 29 U.S.C.A. §§ 626(c), 633(b). . . [1][2] We hold that that § 14(b) mandates that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings. We also hold, however, that the grievant is not required by § 14(b) to commence the state proceedings within time limits specified by state law. In light of these holdings, it is not necessary to address the question of the circumstances, if any, in which failure to comply with § 14(b) may be excused. [12] Even though the 120-day . . .statute of limitations on age discrimination claims had run, complainant could comply with the mandatory requirement of the Age Discrimination in Employment Act that he first resort to state Page 5 of 9
    • administrative remedies by filing a signed complaint with the . . . State Civil Rights Commission. Age Discrimination in Employment Act of 1967, § 14(b), 29 U.S.C.A. § 633(b). . . . [12] We therefore hold that respondent may yet comply with the requirements of § 14(b) by simply filing a signed complaint with the . . . State Civil Rights Commission. That Commission must be given an opportunity to entertain respondents grievance before his federal litigation can continue. . . . Section 14(b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 601, 607, 29 U.S.C. § 633(b), explicitly states that "no suit may be brought" under the Act until the individual has resorted to the appropriate state remedies. . . this means that his suit should not have been brought and should now be dismissed. EXHIBIT “D” attached hereto and incorporated by reference as if set forth in full herein. Even the SIXTH Circuit Court of Appeals has decided said issue to support that the Ohio Civil Rights Commission ERRED in its failure to retain jurisdiction over Newsome’s “Official Complaint/ Charge Of Discrimination” alleging 180-day statute had expired with KNOWLEDGE and/or should have known that it was subject to the 240-day statute of limitations. Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614 (6th Cir. 1983) - United States Supreme Court decision interpreting statutory Title VII filing requirement to preclude charges being filed with Equal Employment Opportunity Commission in deferral states until 60 days after state fair employment agency has received notice of allegations may not be applied retroactively, and therefore instant action, where plaintiff initiated complaint with EEOC and state civil rights commission 244 days after he was terminated, was timely filed. Civil Rights Act of 1964, §§ 701 et seq., 706(b), as amended, 42 U.S.C.A. §§ 2000e et seq., 2000e-5(c). Nevertheless, here are approximately FIVE (5) MONTHS later and Secretary Solis, you and the EEOC have FAILED to defer/refer Newsome’s Complaint/Charges to the Ohio Civil Rights Commission.f) It is UNDISPUTED that United States of America President Barack Obama is also an Attorney (i.e. licensed to practice law – in fact CONSTITUTIONAL Law as he likes to share) and has KNOWLEDGE that Newsome’s arguments are SOUND in statutes/laws governing said issues.g) It is UNDISPUTED that G. Michael Payton (Executive Director of the Ohio Civil Rights Commission) is also an attorney. Therefore, it is NOT clear why Secretary Solis, President Barack Obama, and Mr. Payton have not resolved the issues presented to get the Complaints/Charges filed with the Ohio Civil Rights Commission.h) Secretary Solis, you DO NOT dispute the ERROR by the Ohio Civil Rights Commission; however, you have FAILED to defer/refer this matter to the Ohio Civil Rights Commission although there is EVIDENCE that the EEOC has KNOWLEDGE of the MANDATORY “Deferral/Referral” requirements. See For instance Pitts vs. Dayton Power & Light Co.: Arthur Pitts vs. Dayton Power & Light Co., 748 F.Supp. 527 (1989) - [1] Terminated employee met requirements for bringing of action under the Age Discrimination in Employment Act (ADEA) when the Equal Employment Opportunity Commission referred the employees charge to the Ohio Civil Rights Commission (OCRC) to meet the referral requirements of the ADEA, and the employee commenced the action under the ADEA more than 60 days after Page 6 of 9
    • proceedings were commenced with the OCRC. Age Discrimination in Employment Act of 1967, §§ 14, 14(b), 29 U.S.C.A. §§ 633, 633(b). . . . Section 633(b) of Title 29 of the United States Code provides in pertinent part: In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under Section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated.... the EEOC referred Plaintiffs EEOC charge to the OCRC in order to meet the referral requirements of § 14 of the ADEA (Doc. # 14, Exh. A) . . .See EXHIBIT “F” attached hereto and incorporated by reference as if set forth in full herein.i) Secretary Solis you and the EEOC neither DISPUTE that said issue(s) was raised and preserved through Newsome June 8, 2012 filing entitled, REQUEST FOR RECONSIDERATION OF DISMISSAL AND NOTICE OF RIGHTS, NOTIFICATION OF ADMINISTRATIVE PROCEDURE ACT VIOLATIONS, REQUEST FOR EEOC‟S “WRITTEN” DETERMINATION – FINDINGS OF FACT AND CONCLUSION OF LAW, REQUEST FOR “WRITTEN” TITLE VII INTERPRETATION/OPINION, REQUEST FOR DEFERRAL TO THE OHIO CIVIL RIGHTS COMMISSION, REQUEST FOR STATUS OF COMMISSION CHARGE TO ISSUE; OBJECTIONS TO EMPLOYMENT OPPORTUNITY COMMISSION‟S MAY 31, 2012 DISMISSAL AND NOTICE OF RIGHTS; RESPONSE TO OHIO CIVIL RIGHTS COMMISSION‟S LETTER DATED MAY 9, 2012 REGARDING “YOUR INQUIRY REGARDING POTENTIAL CHARGE OF DISCRIMINATION;” and 2ND REQUEST TO BE ADVISED OF ALL “CONFLICT-OF-INTERESTS” (hereinafter “RFROD&NOR. . .”) A copy which may also be obtained from the Internet: http://www.slideshare.net/VogelDenise/060812-eeoc-response-final-13269482 Newsome TIMELY, PROPERLY and ADEQUATELY preserved this issue and set forth demand and RIGHTS to have this instant EEOC Complaint/Charge deferred to the Ohio Civil Rights Commission through her “RFROD&NOR. . .” See at Pages/Paragraphs: 7/¶ 8, 8/¶ 13, 11/¶ 24, 15/¶33, 18/¶42, 20/¶49 and Pages 29-30 IV. REQUEST FOR DEFFERAL TO THE OHIO CIVIL RIGHTS COMMISSION: http://www.slideshare.net/VogelDenise/060812-eeoc-response-final-13269482 https://secure.filesanywhere.com/fs/v.aspx?v=8a70678e5d5f70afac9cj) Newsome hereby DEMANDS that the Equal Employment Opportunity Commission’s Secretary of Labor Hilda Solis (i.e. NOT the Little “Want-To-BeChiefs” as Wilma L. Javey) advise her in “WRITING” as to whether or not the instant Complaint/Charge brought against Respondents (The Garretson Firm Resolution Group Inc. and Messina Page 7 of 9
    • Staffing/Messina Management Systems) has been DEFERRED to the Ohio Civil Rights Commission as MANDATORILY required by STATUTES/LAWS. Secretary Solis you and the EEOC have a MANDATORY duty/obligation to MITIGATE costs in the handling of Newsome’s Complaints/Charges. Have you and the EEOC done so? NO! Instead, Secretary Solis, you insist on SUBJECTING Newsome to further INJURY/HARM! k) In REITERATING Newsome’s DEMAND at Page 7 and Paragraph 7 of “RT06-14- 12EEOCLetter,” Newsome DEMANDS to be advised of the: “STATUS” of the MANDATORY issuance of COMMISSIONER CHARGE of this instant Equal Employment Opportunity Commission Complaint/Charge pursuant to 29 CFR § 1601.6 and other statutes/laws governing said matters. Newsome’s Complaint/Charge and the issues brought through pleadings/documents provided clearly support the issuance of COMMISSIONER Charge. In support of the Equal Employment Commissions KNOWLEDGE that Newsome’s Complaint/Charge and request set forth therein for the issuance of COMMISSIONER CHARGE, information may be obtained at the following links: http://www.slideshare.net/VogelDenise/commissioner-charge-systematic-task- force-reporteeoc-highlighted l) Secretary Solis it is UNDISPUTED that in accordance with the EEOC Guidelines governing said matters that Newsome is ENTITLED to IMMEDIATE payment of Back Wages of approximately $29,400 and does NOT have to wait until the completion of this matter; moreover, yours, the EEOC and President Barack Obama’s efforts to wait until she has EXHAUSTED her UNEMPLOYMENT Benefits! m) UNDISPUTED is the fact that the record evidence supports/sustains “INDIVIDUAL” and “SYSTEMATIC” DISCRIMINATORY practices leveled AGAINST Vogel Denise Newsome and, therefore, warranting COMMISSIONER CHARGE to issue pursuant to 29 CFR § 1601.6 and other statutes/laws governing said matters . Please advise Newsome whether or not the COMMISSIONER CHARGE that is also MANDATORILY required to issue has been implemented. See also “RFROD&NOR. . .” Page 38 at Section VII (REQUEST OF STATUS OF COMMISSIONER CHARGE TO ISSUE) as well as Pages 4 – 6 at Section I. EEOC Document: http://www.slideshare.net/VogelDenise/commissioner- charge-systematic-task-force-reporteeoc-highlighted WHEREFORE, PREMISES considered, Newsome is DEMANDING that Secretary of Labor Hilda Solisprovide her with a “WRITTEN RESPONSE” by TUESDAY, October 16, 2012, to this instant submittal andadvises that she does NOT waive any rights to have this matter DEFERRED to the Ohio Civil Rights Commissionand DEMANDS that the COMMISSIONER CHARGE issue in this matter. Page 8 of 9
    • EXHIBIT "A"
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208 2 Cases that cite this headnote [2] Administrative Law and Procedure Exhaustion of Administrative Remedies Civil Rights Exhaustion of State or Local Remedies Employee exhausted her administrative remedies, and thus fulfilled necessary jurisdictional prerequisites for ADEA retaliation claim, whereEmployee brought action against employer for age she filed retaliation charge with Ohio Civil Rightsdiscrimination under Age Discrimination in Employment Act Commission (OCRC) and waited 60 days before(ADEA) and Ohio law, and against hospital and individuals filing suit in federal court; employee was notfor intentional infliction of emotional distress under Ohio required to pursue OCRC claim to its conclusion.law. On motion by hospital and individuals for summary Age Discrimination in Employment Act of 1967,judgment, the District Court, Economus, J., held that: (1) § 14(b), 29 U.S.C.A. § 633(b).90–day limitations period applied to all ADEA actions filedafter enactment of Civil Rights Act of 1991; (2) employeeexhausted her administrative remedies, and thus fulfilled [3] Civil Rightsnecessary jurisdictional prerequisites for ADEA retaliation Deferral to State Agencies; Timeclaim, where she filed retaliation charge with Ohio Civil Ohio is deferral state within meaning of statuteRights Commission (OCRC) and waited 60 days before filing mandating that in deferral states, i.e., states wheresuit in federal court; (3) 180–day statute of limitations applied established agencies are empowered to remedyto Ohio age discrimination claim; (4) even if ADEA claim age discrimination in employment, person maywere not timebarred, employee failed to establish prima not bring suit in federal court under ADEAfacie hostile environment claim, since no respondeat superior unless person has commenced proceeding withliability existed on part of employer; (5) even if ADEA appropriate state agency. Age Discrimination inclaim were not timebarred, employee failed to establish prima Employment Act of 1967, § 14(b), 29 U.S.C.A.facie hostile environment claim, since no materially adverse § 633(b).change in terms or conditions of employees employmentoccurred; and (6) evidence was insufficient to support claimthat supervisors engaged in extreme and outrageous conduct [4] Civil Rightsthat would support finding of liability for intentional infliction Existence of Other Remedies; Exclusivityof emotional distress. While it was intent of Congress to encourageMotion granted. resolution of age discrimination disputes on state level through recourse to state administrative remedies, Congress also intended West Headnotes (19) to make remedies of ADEA complementary and supplementary to state administrative remedies,[1] Civil Rights and not mutually exclusive. Age Discrimination Time for Proceedings; Limitations in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. Ninety-day limitations period applies to all ADEA actions filed after enactment of Civil Rights Act of 1991. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 7(e), 29 [5] Civil Rights U.S.C.A. §§ 621 et seq., 626(e). Time for Proceedings; Limitations EXHIBIT "B" © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208 Under Ohio law, general six-year statute of limitations applies to gender discrimination claims, since no provision in chapter governing [9] Civil Rights Civil Rights Commission, other than provision Harassment; Work Environment authorizing civil action for damages for violations Hostile work environment allegations are equally of chapter, creates civil liability for gender-based cognizable in age discrimination context as well claims. Ohio R.C. §§ 4112.01 et seq., 4112.99. as in situations involving title 7 claimants. Age Discrimination in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Civil Rights Act[6] Civil Rights of 1964, § 701 et seq., as amended, 42 U.S.C.A. Employment Practices § 2000e et seq. Statutes General and Special Statutes Under Ohio law, 180–day statute of limitations [10] Civil Rights applied to age discrimination claim, since specific Harassment; Work Environment provision in chapter governing Civil Rights Hostile work environment theory requires that Commission set forth such limitations period, employee show that: (1) he or she was member and prevailed over conflicting provision setting of protected class; (2) he or she was subject forth general six-year statute of limitations for to unwelcome harassment; (3) harassment was violations of chapter. Ohio R.C. §§ 4112.01 et prompted solely because of employees age; seq., 4112.02(N), 4112.99. (4) harassment affected term, condition, or privilege of employment; and (5) existence of 4 Cases that cite this headnote respondeat superior liability. Age Discrimination in Employment Act of 1967, § 2 et seq., 29[7] Civil Rights U.S.C.A. § 621 et seq.; Civil Rights Act of 1964, Hostile Environment; Severity, § 701 et seq., as amended, 42 U.S.C.A. § 2000e Pervasiveness, and Frequency et seq. Hostile work environment requires existence of severe or pervasive and unwelcome verbal or physical harassment because of [11] Civil Rights employees membership in protected class. Age Vicarious Liability; Respondeat Superior Discrimination in Employment Act of 1967, § 2 et No respondeat superior liability existed on seq., 29 U.S.C.A. § 621 et seq.; Civil Rights Act part of employer in connection with alleged of 1964, § 701 et seq., as amended, 42 U.S.C.A. harassment based on age, and employee thus § 2000e et seq. failed to establish fifth element of ADEA hostile environment claim; employee did not complain about alleged harassment and, when co-worker[8] Civil Rights brought similar concerns to employers attention, Harassment; Work Environment offending supervisor was sent to management No reasons exists to differentiate between age sensitivity training seminars. Age Discrimination discrimination claimants and members of other in Employment Act of 1967, § 2 et seq., 29 protected groups for purposes of bringing hostile U.S.C.A. § 621 et seq. work environment claim, since there is virtually 2 Cases that cite this headnote little or no difference between ADEA and Title VII. Age Discrimination in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Civil [12] Civil Rights Rights Act of 1964, § 701 et seq., as amended, 42 Vicarious Liability; Respondeat Superior U.S.C.A. § 2000e et seq. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 2
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208 To show respondeat superior liability in co- whether employee has established prima worker discrimination cases, employee must facie case of retaliation, involved objective prove that employer, through its agents or determination of whether conduct of employees supervisory personnel, knew or should have supervisor and coworkers created such difficult known of charged harassment and failed to or unpleasant working conditions that reasonable implement prompt and appropriate corrective person in employees shoes could not tolerate action. Age Discrimination in Employment Act of them. Age Discrimination in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Civil 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq. [16] Damages Labor and Employment[13] Civil Rights Under Ohio law, negligent infliction of emotional Practices Prohibited or Required in General; distress is not recognized in employment context. Elements Elements of prima facie case of retaliation are: (1) 1 Cases that cite this headnote that employee engaged in protected activity; (2) that exercise of employees protected rights was [17] Damages known to employer; (3) that employer thereafter Elements in General took employment action adverse to employee; Under Ohio law, to support claim for tort of and (4) that there was causal connection between intentional infliction of emotional distress, four protected activity and adverse employment elements must be proved: (1) that actor either action. Age Discrimination in Employment Act intended to cause emotional distress or knew of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. or should have known that actions taken would result in serious emotional distress plaintiff; (2) that actors conduct was extreme and outrageous,[14] Civil Rights that it went beyond all possible bounds of Particular Cases decency, and that it can be considered as utterly Civil Rights intolerable in civilized community; (3) that Discipline actors actions were proximate cause of plaintiffs No materially adverse change in terms or psychic injury; and (4) that mental anguish conditions of employees employment occurred, suffered by plaintiff is serious and of nature that and employee thus failed to establish third no reasonable person could be expected to endure element of ADEA retaliation claim; employee it. could not recall if her discipline was result of 1 Cases that cite this headnote her mistakes, employee could not recall jokes about old persons allegedly made by co-workers, and employee was not demoted, threatened with [18] Damages dismissal, or forced to take cut in pay. Age Nature of Injury or Threat Discrimination in Employment Act of 1967, § 2 Damages et seq., 29 U.S.C.A. § 621 et seq. Humiliation, Insults, and Indignities Under Ohio law, liability for intentional infliction of emotional distress does not extend to mere[15] Civil Rights insults, indignities, threats, annoyances, petty Adverse Actions in General oppressions, or other trivialities. Determining whether there was material adverse change in terms or conditions of employment, for purposes of determining [19] Damages © 2012 Thomson Reuters. No claim to original U.S. Government Works. 3
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208 Mental Suffering and Emotional Distress informed Ms. Dunn that she had ninety days within which to Under Ohio law, assuming that claim for file an action in federal court. intentional infliction of emotional distress is In April, 1993, Ms. Dunn filed a second charge with the recognized in employment context, evidence was OCRC and the EEOC alleging retaliation by the Hospital. insufficient to support employees claim that The OCRC found probable cause that the Hospital retaliated supervisors engaged in extreme and outrageous against her. conduct that would support finding of liability; although employee complained of comments On November 15, 1994, Ms. Dunn filed this action related to her age, exclusion from office parties, alleging causes of action under the Age Discrimination in increase in work load, cursing by supervisor, Employment Act (ADEA), 42 U.S.C. § 1983, as well as age and dumping of her birthday cake into trash, discrimination and intentional infliction of emotional distress employee did not go to any medical provider claims under Ohio law. Some of these claims have been other than for annual check-up, and employee did dismissed and thus the claims that are before the Court at this not miss any work because of stress. time are the following: Count One (ADEA as to the Hospital), Count Two (alleged violation by the Hospital of Ohio Revised Code §§ 4112.02 and 4112.99), and Count Three (intentional infliction of emotional distress as to all defendants). 1Attorneys and Law Firms In her complaint and affidavit, Ms. Dunn claims she experienced numerous actions and comments related directly*1188 Edward L. Gilbert, Law Offices Of Edward L. to her age around the time the new patient accounts manager,Gilbert, Akron, OH, for Ruth Ann Dunn. Defendant Darla Kennedy, began working at the Hospital.Joel R. Hlavaty, Richard V. Whelan, Jr., Thompson, Hine & These included the older workers in the department beingFlory, Cleveland, OH, for Medina General Hospital, Darla excluded from office parties, additional duties assigned toKermendy, Kenneth Milligan. older workers which were not assigned to the younger workers, auditing of the older employees work by theStephanie Dutchess Trudeau, Ulmer & Berne, Cleveland, younger workers, and other preferential treatment of theOH, for Stephanie Dutchess Trudeau. younger workers. In essence she claims that her working environment consisted of preferential treatment of youngerOpinion workers and demeaning treatment of older workers. MEMORANDUM OPINION *1189 The Defendant has moved for summary judgment on numerous grounds which the Court will address as raisedECONOMUS, District Judge. within the motion.This matter is before the Court on motion by the Defendants I. Plaintiffs First EEOC Charge is Time–Barredfor summary judgment. Having reviewed the record andconsidered the facts in a light most favorable to the non- The Hospital first argues that Ms. Dunns ADEA claim formovant Plaintiff, the Court will grant summary judgment. actions complained of in her first complaint to the EEOC is time-barred. The Hospital cites to 29 U.S.C. § 626(e), whichPlaintiff, Ruth Dunn, has been employed by the provides as follows:Medina General Hospital (Hospital) as a commercialbiller since 1969. On June 25, 1992, Ms. Dunn filed If a charge filed with the Commissiona charge of age discrimination with the Ohio Civil under this chapter is dismissed orRights Commission (OCRC) and the Equal Employment the proceedings of the CommissionOpportunity Commission (EEOC). In November of 1992, are otherwise terminated by thethe OCRC found that it was not probable that the Hospital Commission, the Commission shallhad discriminated against her and dismissed the charge. On notify the person aggrieved. A civilFebruary 24, 1993, the EEOC also dismissed the charge and action may be brought under this section by a person defined in © 2012 Thomson Reuters. No claim to original U.S. Government Works. 4
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208 section 630(a) of this title against the Court. The Second, Fifth, and Eighth Circuits have concluded respondent in the charge within 90 that § 626(e) applies to actions such as this one. See Vernon days after the date of the receipt of v. Cassadaga Valley Cent. School Dist., 49 F.3d 886, 889– such notice. 91 (2d Cir.1995); St. Louis v. Texas Workers Compensation Commission, 65 F.3d 43, 45–46 (5th Cir.1995); Garfield v.On February 24, 1993, the EEOC notified Ms. Dunn by J.C. Nichols Real Estate, 57 F.3d 662, 664–65 (8th Cir.), cert.letter of her right to sue. The letter contained the following denied, 516 U.S. 944, 116 S.Ct. 380, 133 L.Ed.2d 303 (1995).language: [1] Each of the above cases held that the Civil Rights A lawsuit under the Age Act of 1991 amended 29 U.S.C. § 626(e) by eliminating Discrimination in Employment Act the two or three year limitations period and that § 626(e) (“ADEA”) ordinarily must be filed now provides the exclusive limitations period for claims within two years of the date of brought under the ADEA. Both the language and legislative discrimination alleged in the charge. history of § 626(e) support this conclusion. The statute states On November 21, 1991, the ADEA clearly that a complainant may file suit within ninety days was amended to eliminate this two after the date of the receipt of a right-to-sue letter from year limit. An ADEA lawsuit may now the EEOC. The legislative history indicates that the two or be filed any time from 60 days after a three year statute of limitations incorporated into the former charge is filed to 90 days after receipt § 626(e) does not survive the passage of the 1991 Act. In of notice that EEOC has completed the 1991 Act, Congress deleted from the former § 626(e) action on the charge. the express reference to § 255 of the Portal–to–Portal Pay Act which provided for the two or three year limitationsBecause Ms. Dunn did not file her complaint until November period. This Court agrees with the interpretation of the15, 1994, the Hospital argues that the claim is now time- legislative history of § 626(e) set forth in *1190 McCraybarred by § 626(e). v. Corry Mfg. Co., 872 F.Supp. 209 (W.D.Pa.1994), affd 61Plaintiff argues that this claim is governed by the statute of F.3d 224 (3rd Cir.1995) where the court concluded that thelimitations in effect under the ADEA prior to the enactment legislative history “demonstrates that the purpose of the 1991of the Civil Rights Act of 1991. Under the rules in place Amendment to § 626(e) was to create a ninety-day windowprior to the Civil Rights Act of 1991, a plaintiff in an age within which plaintiffs must file suit under the ADEA or losediscrimination case generally had two years after the action their right to do so.”accrued to file a claim, and three years if the claim alleged a The analysis of the Vernon, St. Louis, and Garfield decisions“willful violation.” Plaintiff further argues that the language is persuasive. Further, the Simmons case relied upon byof the statute is permissive and provides merely that an ADEA Plaintiff was accurately criticized in McCray and that casesuit could, but did not have to be filed within 90 days. provides a helpful analysis of this issue. The language of §The word “may” in § 626(e), Plaintiff contends, indicates 626(e), the legislative history, and the weight of authoritythe intent of Congress to supplement rather than replace the among the courts all support the conclusion that the statute ofthree-year limitations period. Thus, as long as her suit was limitations of § 626(e) is applicable to Plaintiffs first ADEAfiled within the three-year statute of limitations for willful claim. Ms. Dunn was required to file her action within ninetyviolations, her ADEA action is not time-barred. Plaintiff days of having received the February 23, 1993 right-to-suerelies on Simmons v. Al Smith Buick Co., Inc., 841 F.Supp. notice. She did not do so. Consequently, this claim is time-168 (E.D.N.C.1993) as authority that the 90–day limit was not barred.intended to be the only limit in ADEA cases and to replacethe previous two and three year rules, and urges this Court to II. Exhaustion of Administrative Remediesadopt its reasoning. [2] As to Ms. Dunns second EEOC charge for retaliation,The issue is therefore whether the amended statute of the Hospital contends that the claim must be dismissedlimitations period applies to all civil actions filed after the because she has failed to exhaust her administrativeenactment of the 1991 Civil Rights Act. The Sixth Circuit remedies. Upon the EEOCs denial of her first claim of agehas not addressed this issue but a review of the law of the discrimination, Ms. Dunn returned to work. She subsequentlycircuits which have considered it will serve as a guide to this © 2012 Thomson Reuters. No claim to original U.S. Government Works. 5
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208filed a second charge with the OCRC for retaliation. Inaccordance with the relevant filing guidelines, she filed her III. Plaintiffs Ohio Age Claims are Time–Barredlawsuit more than sixty days later. During this interim period, Defendant next claims that Plaintiffs state claims of ageshe did not pursue her claim with the OCRC and did not discrimination are time barred because Section 4112.02(N) ofrespond to its requests for interrogatories or interviews. The the Ohio Revised Code provides that any civil action broughtOCRC therefore recommended dismissal of her charge due under § 4112.02 must be instituted within 180 days afterto lack of cooperation with the discovery process. Defendants the alleged unlawful discriminatory practice. Defendants alsoequate this failure to cooperate with a failure to exhaust contend that the continuing violations theory *1191 is notadministrative remedies, thereby mandating dismissal of the applicable and thus cannot toll the limitations period. Plaintiffclaim. argues that the Bellian decision relied upon by Defendants [3] The Supreme Court has held that 29 U.S.C. § 633(b) was overruled by the Ohio Supreme Court in Cosgrove v.mandates that in states where established agencies are Williamsburg of Cincinnati Management Co. Inc., 70 Ohioempowered to remedy age discrimination in employment St.3d 281, 638 N.E.2d 991 (1994).(deferral states), a person may not bring a suit in federal court The Ohio Supreme Court has held that the time periodunder the ADEA unless she has commenced a proceeding of limitations of Section 4112.02(N) applies to agewith the appropriate state agency. Oscar Mayer and Co. discrimination actions brought under § 4112.99. Bellian v.v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 Bicron Corp., 69 Ohio St.3d 517, 634 N.E.2d 608 (1994)(1979) (emphasis added). The Ohio Civil Rights Commission In Bellian, the Ohio Supreme Court held that an age(OCRC) is Ohios agency which is empowered to remedy age discrimination claim premised on a violation of § 4112.99discrimination in employment. Ohio is a deferral state within had to comply with the 180–day limitations period despite thethe meaning of § 14(b) of the ADEA. Brownlow v. Edgcomb employees assertion that the claim should be governed by theMetals Co., 573 F.Supp. 679, 683 (N.D.Ohio 1983). general six-year limitations period. Plaintiff here makes the [4] While it was the intent of Congress to encourage same argument in support of the six-year limitations period,the resolution of age discrimination disputes on the state citing Cosgrove.level through recourse to state administrative remedies, it is The syllabus by the Court in Cosgrove states that “R.C.equally clear that Congress intended to make the remedies 4112.99 is a remedial statute, and is thus subject to R.C.of the ADEA complementary and supplementary to state 2305.07s six-year statute of limitations.” The syllabus inadministrative remedies, and not mutually exclusive. Oscar Bellian reads: “Any age discrimination claim, premised onMayer, 441 U.S. at 764, 99 S.Ct. at 2075. Moreover, a violation described in R.C. Chapter 4112, must complythe holding in Oscar Mayer was that a filing of a state with the one-hundred-eighty-day statute of limitations periodadministrative complaint after the state statute of limitations set forth in former R.C. 4112.02(N).” Justice Alice Robiefor that filing had run did not prevent an age discrimination Resnick provides an important distinction in her concurringplaintiff from proceeding with a claim under the ADEA, opinion to Cosgrove to explain the apparent inconsistencyeven though the filing had therefore been merely perfunctory. between the holdings of the Ohio Supreme Court in BellianId. The plaintiff need only wait sixty days before bringing and Cosgrove.suit in federal court, even if the filing is merely formal andineffective for state administrative purposes. Id. at 762, 99 The essential distinction between the two cases is that BellianS.Ct. at 2074–2075. was an age discrimination case while Cosgrove was a gender- based discrimination claim. In Bellian the court recognizedThis reasoning is applicable here. Ms. Dunn “commenced” that there may be other provisions in R.C. Chapter 4112 thatstate proceedings with the appropriate administrative agency, permit aggrieved individuals to enforce specific rights underthe OCRC. The holding of Oscar Mayer does not require Chapter 4112 by instituting a civil action. To the extent thather to pursue that claim with the administrative agency to its other specific provisions set forth a statute of limitations, aconclusion. By waiting sixty days before filing her lawsuit conflict could exist between such specific provisions and R.C.in federal court, she has fulfilled the necessary jurisdictional 4112.99, relative to the applicable statute of limitations. “Inprerequisites and her second claim for retaliation is now such an event, pursuant to R.C. 1.51, the specific provisionsproperly before this Court. statute of limitations must prevail.” Bellian, 69 Ohio St.3d at 519, 634 N.E.2d 608. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 6
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208The plaintiff in Bellian brought an age-based employment An aggrieved individual may enforcediscrimination claim that purported to be based on R.C. his rights relative to discrimination of4112.99. However, the only provision in R.C. Chapter 4112 the basis of age as provided for in thisthat recognizes discrimination based on age is R.C. 4112.02. section by instituting a civil action,Therefore, the plaintiff must have been referring to the within one hundred eighty days afterform of age-based discrimination identified in R.C. 4112.02. the alleged unlawful discriminatoryCosgrove, 70 Ohio St.3d at 290, 638 N.E.2d 991. R.C. practice occurred, in any court with4112.02(N) specifically authorized civil actions for age-based jurisdiction for any legal or equitableemployment discrimination claims and contained a 180–day relief that will effectuate his rights.statute of limitations. Consequently, its statute of limitationsprevailed over that of R.C. 4112.99. When Plaintiff filed this action she was not in compliance with the 180–day limitations period established by this [5] [6] The plaintiff in Cosgrove brought a gender- section. For this reason, her claims for age discriminationbased employment discrimination claim, also pursuant to under Ohio Revised Code §§ 4211.02 and 4211.99 are timeR.C. 4112.99. As in Bellian, the only provision in R.C. barred and must be dismissed.Chapter 4112 that proscribes gender-based employmentdiscrimination is R.C. 4112.02. Unlike the situation in Having determined that these claims are time barred, it isBellian, however, there is no R.C. Chapter 4112 provision, not necessary for the Court to address Defendants argumentother than R.C. 4112.99, that creates civil liability for gender- that Plaintiffs age claims under Ohio law are barred by herbased employment discrimination claims. R.C. 4112.02(N) election of remedies.only authorizes civil actions relative to discrimination on the IV. Prima Facie Case of Age Discriminationbasis of age. Thus, there is no specific R.C. Chapter 4112provision which conflicts with R.C. 4112.99. Accordingly, Although the Court has ruled that Plaintiffs agethe six-year statute of limitations set forth in R.C. 2305.07 discrimination claim is time-barred under 29 U.S.C. § 626(e),and not the 180–day statute of limitations contained in an analysis of the evidence presented reveals that even if sheR.C. 4112.02(N) applies to gender discrimination claims. could proceed with her claim, she cannot establish a primaCosgrove, 70 Ohio St.3d at 291, 638 N.E.2d 991. This facie case.analysis governs the situation before this Court. Becausethis is an action alleging age discrimination, the 180–day Plaintiff has essentially alleged a claim of age discriminationlimitations period of R.C. 4112.02(N) is applicable to the state on the basis of a hostile work environment theory. Defendantsclaims of Ms. Dunn. argue that the evidence presented is insufficient to support such a claim and at most merely reflects hostility between co-Even if the 180–day limitations period is applicable, Plaintiff workers rather than an age-hostile environment.maintains that the statute of limitations is tolled under thecontinuing violation theory because the statutory six-month Fed.R.Civ.P. 56(c) governs summary judgment and provides:period begins to run anew with each new discriminatory act. The judgment sought shall be renderedThe Court is not aware of any Ohio state courts having forthwith if the pleadings, depositions,addressed the question of whether the continuing violations answers to interrogatories, andrationale applies to age-based discrimination claims under admissions on file, together with theR.C. 4112.99 or R.C. 4112.02. Since R.C. 2305 is not affidavits, if any, show that there is noapplicable here, any tolling *1192 provision within that genuine issue as to any material factsection cannot be applied either so as to encompass Plaintiffs and that the moving party is entitled toclaims within the statutory period. judgment as a matter of law ...Plaintiffs administrative claims were filed in June 1992 and The party moving for summary judgment bears the burdenApril 1993. Plaintiff alleges that the discriminatory actions of showing the absence of a genuine issue as to any materialof the Defendants have been continual since June 1, 1991. fact, and for these purposes, the evidence submitted must beShe filed this cause of action on November 15, 1994. R.C. viewed in the light most favorable to the nonmoving party4112.02(N) reads: to determine whether a genuine issue of material fact exists. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 7
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 class; (2) she was subject to unwelcome harassment; (3)(6th Cir.1995). the harassment was prompted solely because of her age; (4) the harassment affected a term, condition, or privilege of“The burden on the nonmoving party may be discharged her employment; and (5) existence of respondeat superiorif the moving party demonstrates that the nonmoving party liability. Kotcher v. Rosa and Sullivan Appliance Center, Inc.,has failed to establish an essential element of his or her 957 F.2d 59 (2d Cir.1992).case for which he or she bears the ultimate burden of proofat trial.” Morales v. American Honda Motor Co., Inc., 71 Defendants argue that Ms. Dunn has failed to presentF.3d 531, 535 (6th Cir.1995). If the moving party meets this sufficient facts to show that she was a victim of a hostileburden, only then must the nonmoving party present more environment based on age. It is clear that plaintiff is withinthan a scintilla of evidence in support of his or her position. the protected class. Viewing the workplace incidents allegedAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. in a light most favorable to plaintiff, she was subjected2505, 2512, 91 L.Ed.2d 202 (1986). Summary judgment must to unwelcome harassment. A reasonable inference may bebe granted unless there is sufficient evidence favoring the drawn by a jury, based upon Ms. Dunns deposition andnonmoving party for a judge or jury to return a verdict for that affidavit, that the harassment was because of her age. Thereparty. Id. at 249, 106 S.Ct. at 2510–2511. is also sufficient evidence to establish a question of fact as to whether the terms and conditions of her employment were [7] [8] [9] A hostile work environment requires the affected.existence of severe or pervasive and unwelcome verbal orphysical harassment because of a plaintiffs membership in Defendants make much of the fact that some of the othera protected class. Meritor Sav. Bank, FSB v. Vinson, 477 employees were also over forty years of age. The factU.S. 57, 66–67, 106 S.Ct. 2399, 2405–2406, 91 L.Ed.2d 49 that some employees are over forty does not correspond(1986). Title VII of the Civil Rights Act makes it illegal to an automatic lack of discrimination so as to precludefor an employer to “discriminate against any individual with summary judgment. Defendant also emphasizes that isolatedrespect to his compensation, terms, conditions, or privileges statements by a supervisor are insufficient to create an issueof employment because of such individuals race, color, of material fact. Here, the record, when considered as a whole,religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a) contains sufficient outstanding issues of material fact with(1). The ADEA forbids the identical conduct when the respect to her claim that she was subjected to a hostile workdiscrimination is “because of such individuals age.” 29 environment due to her age.U.S.C. § 623(a)(1). With virtually little or no differencebetween the ADEA and Title VII, there is no reason [11] [12] However, Plaintiff encounters difficulties into differentiate between age discrimination claimants and demonstrating the last requirement of a valid hostilemembers of *1193 other protected groups for purposes work environment action, i.e. respondeat superior liability.of bringing a hostile work environment claim; an age To show respondeat superior liability in co-workerclaimants rights are simply protected by the ADEA rather discrimination cases, a plaintiff must prove that the employer,than Title VII. Drez v. E.R. Squibb & Sons, Inc., 674 F.Supp. through its agents or supervisory personnel, knew or1432, 1436–37 (D.Kan.1987). Several courts have recognized should have known of the charged harassment and failedthat a plaintiff may establish violations of the ADEA to implement prompt and appropriate corrective action.by proving the existence of a hostile work environment. Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178,See Clemmer v. Enron Corp. et al., No. Civ. A. H– 183 (6th Cir.1992), cert. denied, 506 U.S. 1041, 113 S.Ct.93–3550, 1995 WL 334372 (S.D.Tex., March 27, 1995); 831, 121 L.Ed.2d 701.Eggleston v. South Bend Community Sch. Corp., 858 F.Supp. Here, Ms. Dunn admitted that she did not complain about841, 847 (N.D.Ind.1994); Spence v. Maryland Cas. Co., the alleged incidents which serve as the basis for her action.803 F.Supp. 649, 671 (W.D.N.Y.1992), affd. 995 F.2d Additionally, when a fellow co-worker brought similar1147 (2d Cir.1993). Accordingly, hostile work environment concerns to the attention of the Hospital, the offendingallegations are equally cognizable in the age discrimination supervisor was sent to “management sensitivity” trainingcontext as well as in situations involving Title VII claimants. seminars. Therefore, the Hospital, if it indeed had knowledge [10] A hostile work environment theory requires that the of the incidents, did take prompt and appropriate correctiveplaintiff show that (1) she was a member of protected © 2012 Thomson Reuters. No claim to original U.S. Government Works. 8
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208action. Because a prima facie case for age discrimination so unpleasant that a reasonable person could not toleratecannot be established, summary judgment must be granted. it. Consequently, the facts do not constitute a materially adverse change in the terms or conditions of employment andV. Prima Facie Case of Retaliation summary judgment must be granted. [13] The elements of a prima facie case of retaliation are VI. Intentional Infliction of Emotional Distress Claim(1) that a plaintiff engaged in a protected activity; (2) that theexercise of her protected rights was known to the defendants; [16] Negligent infliction of emotional distress is not(3) that the defendants thereafter took an employment action recognized in the employment context in Ohio. See Antalis v.adverse to plaintiff; and (4) that there was a causal connection Department of Commerce, 68 Ohio App.3d 650, 589 N.E.2dbetween the protected activity and the adverse employment 429 (Ohio Ct.App. 10th Cir.1990).action. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064,1066 (6th Cir.) (per curiam), cert. denied, 498 U.S. 984, 111 [17] [18] To support a claim for the tort of intentionalS.Ct. 516, 112 L.Ed.2d 528 (1990). infliction of emotional distress under Ohio law, four elements must be proved: [14] Ms. Dunn claims that after she filed her firstdiscrimination complaint, the previous harassment she (1) that the actor either intended to cause emotional distresssuffered from other employees and supervisors intensified. or knew or should have known that actions taken wouldShe also claims that she was retaliated against *1194 result in serious emotional distress to the plaintiff;through reprimands for her mistakes, a poor performance (2) that the actors conduct was extreme and outrageous,review, a temporary reduction in the number of commercial that it went beyond all possible bounds of decencybillers in the department, and being questioned about leaving and that it can be considered as utterly intolerable in awork early one day. Upon investigating her complaint, the civilized community;OCRC determined that it was probable that the Hospitalengaged in unlawful discrimination practices. Defendants (3) that the actors actions were the proximate cause of theargue that there is no evidence of any adverse employment plaintiffs psychic injury; andaction. (4) that the mental anguish suffered by plaintiff is serious [15] Determining whether there was a materially adverse and of a nature that no reasonable person could bechange in the terms or conditions of employment involves an expected to endure it.objective determination of whether the conduct of Ms. Dunnssupervisor and coworkers created such difficult or unpleasant Bellios v. Victor Balata Belting Co., 724 F.Supp. 514,working conditions that a reasonable person in Ms. Dunns 520 (S.D.Ohio 1989). See also Yeager v. Local Unionshoes could not tolerate them. Wilson v. Firestone Tire & No. 20, Teamsters, Chauffeurs Warehousemen, & HelpersRubber Co., 932 F.2d 510, 515 (6th Cir.1991). The facts of America, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983).alleged in support of the retaliation claim are essentially the Liability does not extend to mere insults, indignities, threats,same as those alleged in support of the age discrimination annoyances, petty oppressions, or other trivialities. Yeager, 6claim. However, as with Plaintiffs age discrimination claim, Ohio St.3d at 375, 453 N.E.2d 666.the following facts indicate that there is insufficient evidenceto establish a prima facie case for retaliation. [19] Ms. Dunn has complained of comments which were directly related to her age, exclusion from office parties,For instance, Ms. Dunn cannot recall if she was disciplined increase in work load, cursing by her supervisor, theas a result of her mistakes. She cannot recall any of the dumping of her birthday cake into the trash, and other“old” jokes made by co-workers. She did not report the insults or indignities. These incidents, she alleges, caused orcomments or whistling to a supervisor. The billers in the contributed to her stress and emotional distress. However, shebusiness office were seated by financial groups with older did not go to any medical provider other than her generaland younger billers on both sides of the room. The billers practitioner physician for her annual check-up. Further, shewere temporarily reduced for business reasons. She was not did not miss any work because of the stress or her workingdemoted, threatened with dismissal, or forced to take a cut environment.in pay. This evidence, when considered cumulatively, cannotsupport a finding that Ms. Dunns working environment was © 2012 Thomson Reuters. No claim to original U.S. Government Works. 9
    • Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208Following the above standards, and even assuming that Ohio IT IS SO ORDERED.recognizes the tort of intentional infliction of emotionaldistress in the employment context, there is insufficientevidence to show that the conduct Ms. Dunn complained ORDERof was extreme and outrageous. *1195 The incidents In accordance with the memorandum opinion this day filed,complained of are not of the type to be considered as “utterly the Defendants Motion for Summary Judgment (Dkt. # 38)intolerable in a civilized society.” Again, these facts suggest is GRANTED and the claims against the Defendants area likelihood of hostilities among co-workers rather than dismissed with prejudice. This is a final and appealable orderintentional conduct by these defendants. Summary judgment and there is no just cause for delay.must be granted in favor of all the defendants on this issue. IT IS SO ORDERED.VI. CONCLUSION Parallel CitationsFor the reasons stated in this memorandum, Defendantsmotion for summary judgment is GRANTED. An 68 Empl. Prac. Dec. P 44,208appropriate order will accompany this memorandum opinion.Footnotes1 Judge Paul R. Matia granted in part Defendants motion to dismiss, dismissing Plaintiffs claims as to all defendants under § 1983 and the Ohio Rev.Code § 4101.17, and dismissing the age claims in Count I and II as to the individual defendants.End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 10
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 of conspiracy and invidiously discriminating actions. 42 U.S.C.A. § 1985(3). 2 Cases that cite this headnote [3] Conspiracy Pleading Complaint which alleged that joint apprenticeship committee and union engaged in practice of racial discrimination in the bricklayer trade in the Toledo area failed to state a cause of action under § 1985(2); complaint did not sufficiently allege necessary elements of conspiracy or anyTwenty-nine individuals who were bricklayers or wished to nexus with an ongoing federal court proceeding.be bricklayers sued bricklayers union, its joint apprenticeship 42 U.S.C.A. § 1985(2).committee, two contractors associations, and six masonry orgeneral contractors. The suit alleged a pattern or practice of 2 Cases that cite this headnoteracial discrimination in the bricklayer trade in the Toledoarea. On defendants motions for summary judgment or, in [4] Federal Courtsthe alternative, motions to dismiss, the District Court, John Abatement and RevivalW. Potter, J., held that: (1) complaint failed to state a claimunder § 1985(3); (2) complaint failed to state a claim under Whether a § 1981 claim of a deceased plaintiff§ 1985(2); (3) claims of deceased plaintiffs abated pursuant survives his death is governed by state law. 42to Ohio statute; and (4) holding of the Sixth Circuit that Ohio U.S.C.A. § 1981.statute of limitations for § 1981 actions is one year would be 3 Cases that cite this headnoteretroactively applied.Motions granted. [5] Abatement and Revival Actions and Proceedings Which Abate West Headnotes (13) Section 1981 claims of plaintiffs were personal to plaintiffs, and therefore abated at their deaths, pursuant to Ohio statute. 42 U.S.C.A. § 1981;[1] Conspiracy Ohio R.C. § 2311.21. Conspiracy to Interfere with Civil Rights An action under § 1985(2) necessarily must 3 Cases that cite this headnote involve the intimidation of witnesses, parties, or court officers in an ongoing federal court [6] Federal Civil Procedure proceeding. 42 U.S.C.A. § 1985(2). Failure to Appear or Testify; Sanctions Federal Civil Procedure Failure to Answer; Sanctions[2] Conspiracy A partys complaint may be dismissed for failing Pleading to appear for a properly noticed deposition Complaint alleging that joint apprenticeship or for failing to respond to properly served committee and union engaged in pattern or interrogatories; court may impose sanction practice of racial discrimination in the bricklayer directly, without first issuing an order to compel trade in the Toledo area failed to state a cause of discovery. Fed.Rules Civ.Proc.Rule 37(a), 28 action under § 1985(3); count failed to adequately U.S.C.A. allege with particularity the necessary elements EXHIBIT "C" © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 Deferral to State Agencies; Time[7] Civil Rights In “deferral states” such as Ohio, where the Disparate Treatment EEOC defers to the state agency established to A black employee suing his employer under investigate charges of discrimination, an EEOC § 1981 must prove not only that he was charge must be filed within 300 days after the treated differently than white employees, but also alleged unlawful act. Civil Rights Act of 1964, § that his different treatment was the result of 706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1). discriminatory purpose. 42 U.S.C.A. § 1981. [12] Civil Rights[8] Civil Rights Deferral to State Agencies; Time Prima Facie Case When a charge of discrimination is submitted Under Title VII, burden of proof is placed upon to both the Equal Employment Opportunity job applicant to prove a prima facie case of racial Commission and state agency in a “deferral discrimination by showing: that he belongs to a state,” the EEOC will not formally file its racial minority; that he applied and was qualified charge of discrimination until after the state for a job for which employer was seeking agency has terminated its proceedings or 60 days applicants; that, despite his qualifications, he was have elapsed since filing of state administrative rejected; and that after his rejection, position charge, whichever occurs earlier; therefore, state remained open and employer continued to seek administrative charge of discrimination must applicants from persons with his qualifications. generally be filed within 240 days of the alleged Civil Rights Act of 1964, § 701 et seq., as unlawful practice in order to preserve claimants amended, 42 U.S.C.A. § 2000e et seq. right to file a Title VII lawsuit in federal court. Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1).[9] Civil Rights Presumptions, Inferences, and Burden of Proof [13] Courts In order to raise an inference of discrimination In General; Retroactive or Prospective under Title VII, a job applicant must eliminate Operation the two most common reasons why an applicant Holding of the Sixth Circuit that appropriate for employment is rejected: either lack of Ohio statute of limitations for § 1981 actions qualifications or lack of work. Civil Rights Act of is one year would be retroactively applied to 1964, § 701 et seq., as amended, 42 U.S.C.A. § employment discrimination claims; since the law 2000e et seq. on the subject had been erratic and inconsistent, and without clear precedent on which plaintiffs could reasonably rely, retroactive application of[10] Civil Rights the holding was not unfair. Ohio R.C. § 2305.11; Exhaustion of Administrative Remedies 42 U.S.C.A. § 1981. Before Resort to Courts 1 Cases that cite this headnote Prior to filing a Title VII suit claimant must file an administrative charge of discrimination with the Equal Employment Opportunity Commission. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq. Attorneys and Law Firms *718 Wilbur Jacobs, William J. Peters, Toledo, Ohio, for plaintiffs.[11] Civil Rights © 2012 Thomson Reuters. No claim to original U.S. Government Works. 2
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 claim alleges that defendants denied them the right to contractJoseph W. Westmeyer, Jr., Joseph W. Westmeyer, Jr. Co., for employment, in violation of 42 U.S.C. § 1981.Joseph J. Allotta, Allotta, Singer & Farley Co., Toledo, Ohio,for defendants. JAC and Local 3, pursuant to Fed.R.Civ.P. 12(b)(6), move to dismiss Counts I and II of the complaint for failure to state aOpinion claim upon which relief can be granted. A motion to dismiss for failure to state a claim should not be granted unless “it OPINION AND ORDER appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief.”JOHN W. POTTER, District Judge: Banks v. City of Forest Park, 599 F.Supp. 465, 468 (S.D.Ohio 1984). The factual allegations in the complaint are consideredThis matter is before the Court on defendants Bricklayers as true and all reasonable inferences are construed in favorJoint Apprenticeship Committee (JAC) and International of the non-moving party. Id. at 468. However, the court isUnion of Bricklayers and Allied Craftsmen of Toledo, Ohio, “required to accept only well pleaded facts as true ... not theLocal Union No. 3 (Local 3) motions for summary judgment legal conclusions that may be alleged or that may be drawnor, in the alternative, motions to dismiss plaintiffs Lonnie from the pleaded facts.” Blackburn v. Fisk University, 443R. Alsup (Alsup), Washington Brown Sr. (Brown Sr.), F.2d 121, 124 (6th Cir.1971). Furthermore,Willie Brown, Jr. (Brown Jr.), Robert Cantrell (Cantrell),Jeffrey E. Clint (Clint), Charles Foster (Foster), William [a] plaintiff pursuing a theory of conspiracy under theGarcia (Garcia), Sylvester M. Gould Sr. (Gould), Charles civil rights act is “bound to do more than merely stateHarris (Harris), Lester Hollis (Hollis), Edward Holmes vague and conclusory allegations respecting that existence(Holmes), John L. Hughes (Hughes), Richard Hunter of a conspiracy. It [is] incumbent upon him to allege(Hunter), Marion Legare (Legare), Frederick Mars (Mars), with at least some degree of particularity overt acts whichOneis McNeil (McNeil), Lloyd A. Meacham (Meacham), defendants engaged in which were reasonably related to theRoy Meredith (Meredith), Thomas A. Mullins (Mullins), promotion of the claimed conspiracy.”Robert Pack (Pack), James Proctor (Proctor), LemoriaRobertson (Robertson), Angelo Robinson (Angelo), Will A. Taylor v. Flint Osteopathic Hospital, Inc., 561 F.Supp.Robinson (Will), Robert Singletary (Singletary), Paul T. 1152, 1156 (E.D.Mich.1983) (citations omitted). TheSledge (Sledge), Ezra Wallace (Wallace), Robert Walker complaint must also contain specific allegations regarding the(Walker) and Isaac Watson (Watson), plaintiffs opposition to involvement of each defendant. Oldland v. Kurtz, 528 F.Supp. 316, 322 (D.Colo.1981).Local 3s motion and Local 3s reply. 1 Counts I and II of plaintiffs complaint states as follows:As originally filed, this was an action in which 29 menwho were bricklayers or wished to be bricklayers sued The defendant contractors Associations, theLocal 3, JAC, two contractors associations, The Toledo Area Administrative Committee and Executive Director ofHometown Plan, and six masonry or general contractors. the Toledo Area Hometown Plan have entered into aPlaintiffs suit alleges a pattern or practice of racial conspiracy for the purpose of depriving blacks of theirdiscrimination in the bricklayer trade in the Toledo area. civil rights and privileges as citizens of the United States. Since 1977 the Contractors Association hasPlaintiffs first claim alleges that the contractors associations financed the Hometown Plan and paid the salaries of itsand The Hometown Plan entered into a conspiracy depriving employees. Under the plan individual contractors submitblacks of their civil rights and privileges. This claim is made a monthly statistical profile of their workforce includingunder *719 42 U.S.C. § 1985(3). Plaintiffs second claim those contractors who have government contracts tofor relief alleges that the contractors associations and The the Executive Director of the Hometown Plan. TheHometown Plan interfered with the access by blacks to federal Administrative Committees function is to monitor andcourt, in violation of 42 U.S.C. § 1985(2). Plaintiffs third enforce the Department of Labors guidelines but itcause of action alleges a claim of racial discrimination in has failed to do so. Despite the knowledge that allemployment against all defendants under Title VII of the 1964 mason contractors are discriminating in employment, theCivil Rights Act, 42 U.S.C. § 2000e et seq. Plaintiffs final Administrative Committee and its Director has failed to inform the OFCCP of the underutilization of blacks and © 2012 Thomson Reuters. No claim to original U.S. Government Works. 3
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 has failed to recommend that any sanctions be taken clause the courts have required a connection between the against the contractors. The result of this conspiracy proscribed activities and a specific federal proceeding, and by the Contractors Associations and the Administrative a connection between the conspiratorial conduct and the Committee has been to injure blacks, union members, and witness, party, or juror. See, e.g., Bradt v. Smith, 634 F.2d potential black applicants to the exercise of their civil rights 796, 801 (5th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, and privileges as citizens of the United States. 70 L.Ed.2d 106 (1981) (“no nexus whatsoever ... between the alleged conspiracy and any federal proceeding”); Brawer v. The Contractors Associations and the Administrative Horowitz, 535 F.2d 830, 840 (3rd Cir.1976). Committee of the Toledo Area Hometown Plan by secreting all the contractors EEO reports showing [2] [3] Counts I and II of plaintiffs complaint fail to underutilization and violations of Executive Order No. state a cause of action against JAC and Local 3. Counts 11246, Title VII and 42 U.S.C. Section 1981, have I and II of plaintiffs complaint fail to specifically make interfered with the access by blacks to the federal court. any allegations against JAC and Local 3. Count I fails to adequately allege with particularity the necessary elements ofComplaint at ¶ 44–45. conspiracy and invidiously discriminating actions as required by Griffin. Furthermore, Count II does not sufficiently allegeCount I of plaintiffs complaint purportedly alleges a violation the necessary elements of conspiracy or any nexus withof 42 U.S.C. § 1985(3). A claim under 42 U.S.C. § 1985(3) any ongoing court proceeding. Therefore, pursuant to themust allege: criteria of Fed.R.Civ.P. 12(b)(6), Counts I and II of plaintiffs the defendants did (1) “conspire or go in disguise on the complaint fail to state a cause of action upon which relief may highway or on the premises of another” (2) “for the purpose be granted and JAC and Local 3s motions to dismiss Counts of depriving, either directly or indirectly, any person or I and II are well taken. class of persons of the equal protection of the laws, or of [4] JAC and Local 3 contend that the claims of McNeil, equal privileges and immunities under the laws.” It must Pack and Singletary have abated by reason of their deaths then assert that one or *720 more of the conspirators and therefore these claims should be dismissed. Whether a 42 (3) did, or caused to be done, “any act in furtherance of U.S.C. § 1981 claim of a deceased plaintiff survives his death the object of [the] conspiracy,” whereby another was (4a) is governed by state law. Gee v. CBS, Inc., 471 F.Supp. 600, “injured in his person or property” or (4b) “deprived of 614 (E.D.Pa.), affd mem., 612 F.2d 572 (3rd Cir.1979). Two having and exercising any right or privilege of a citizen of Ohio statutes govern the claims of deceased plaintiffs. The the United States.” first, Ohio Rev.Code § 2305.21, states as follows:Griffin v. Breckenridge, 403 U.S. 88, 102–03, 91 S.Ct. 1790, [i]n addition to the causes of action1798–99, 29 L.Ed.2d 338 (1971). which survive at common law, causesCount II of plaintiffs complaint purportedly alleges a of action for mesne profits, or injuriesviolation of 42 U.S.C. § 1985(2). The intent of § 1985(2) is to the person or property, or forto prevent conspiracies “the object of which is intimidation deceit or fraud also shall survive;of or retaliation against parties or witnesses, or grand or petit and such actions may be broughtjurors, in any court of the United States.” Brawer v. Horowitz, notwithstanding the death of the535 F.2d 830, 840 (3rd Cir.1976); Hahn v. Sargent, 523 person entitled or liable thereto.F.2d 461, 469 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 Ohio Rev.Code Ann. § 2305.21 (Anderson 1981). TheS.Ct. 1495, 47 L.Ed.2d 754 (1976). The statutes concern is second, Ohio Rev.Code § 2311.21, identifies those actionswith conspiracies involving perjury, subornation or perjury, which abate at the time of a plaintiffs death:or criminal obstruction of justice. McCord v. Bailey, 636 F.2d606, 614–17 (D.C.Cir.1980), cert. denied, 451 U.S. 983, 101 [u]nless otherwise provided, no actionS.Ct. 2314, 68 L.Ed.2d 839 (1981). or proceeding pending in any court shall abate by the death of either or [1] Thus an action under § 1985(2) necessarily must involve both of the parties thereto, exceptthe intimidation of witnesses, parties, or court officers in actions for libel, slander, maliciousan ongoing federal court proceeding. In interpreting this prosecution, for a nuisance, or against © 2012 Thomson Reuters. No claim to original U.S. Government Works. 4
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 a judge of a county court for order on June 12, 1987 ordering plaintiffs “to answer [JAC misconduct in office, which shall abate and Local 3s] interrogatories on or before July 20, 1987. by the death of either party. Plaintiffs failure to comply with this order may result in dismissal of plaintiffs complaint against [JAC and Local 3].”Ohio Rev.Code Ann. § 2311.21 (Anderson 1981). [7] Section 1981 of Title 42 states in pertinent part thatA claim for relief under Section 1981 is considered to be “[a]ll persons within the jurisdiction of the United Statespersonal in nature. Carter v. City of Emporia, 543 F.Supp. shall have the same right in every State and Territory354, 356 (D.Kan.1982). As such, it is similar to actions to make and enforce contracts ... as is enjoyed by whitefor libel, slander and malicious prosecution which abate at citizens.” An employee suing his employer under Sectionthe time of the plaintiffs death pursuant to Ohio Rev.Code 1981 must prove not only that he was treated differently§ 2311.21. Under the survival and abatement statutes of than white employees, but also that this different treatmentKansas, which are nearly identical to the statutes of Ohio, the was the result of discriminatory purpose. See Generalcourt *721 concluded that plaintiffs claims under 42 U.S.C. Building Contractors Association v. Pennsylvania, 458 U.S.§ 1981 were personal to the plaintiff and therefore abated 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982);at his death. Id. at 356. Furthermore, when a defendant is Smith v. Pan Am World Airways, 706 F.2d 771 (6thunaware of a plaintiffs death before an answer is filed, the Cir.1983). According to the United States Supreme Court,action is a nullity as to that plaintiff and should be dismissed. discriminatory purpose “implies that the decisionmaker ...7C C. Wright, A Miller, & M. Kane, Federal Practice and selected or reaffirmed a particular course of action at least inProcedure § 1951 at 522 & n. 12 (2d ed 1986). part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” Personnel Administrator of [5] McNeil died on October 22, 1985. See Rudolph/Libbe, Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282,Inc. (Rudolph) Motion for Summary Judgment and Dismissal 2296, 60 L.Ed.2d 870 (1979).against McNeil. Pack died on January 27, 1986. See RudolphMotion for Dismissal and Summary Judgment against Pack. The Sixth Circuit Court of Appeals has stated that proofSingletary died on April 15, 1985. See Rudolph Motion for of a prima facie case under Title VII raises a rebuttableSummary Judgment against Singletary. Since these claims presumption of purposeful racial discrimination underhave abated by reason of their deaths, JAC and Local Section 1981. Jackson v. RKO Bottlers of Toledo, Inc., 7433s motions to dismiss and/or summary judgment against F.2d 370, 378 (6th Cir.1984). Therefore, liability under TitleMcNeil, Pack and Singletary are well taken. VII and under Section 1981 rests on the same proof. Cooper v. City of North Olmsted, 795 F.2d 1265, 1270 n. 3 (6thJAC and Local 3s motions for summary judgment against the Cir.1986).remaining plaintiffs seek dismissal because plaintiffs failedto respond to discovery requests, plaintiffs cannot establish [8] [9] Under Title VII, the burden of proof is placeda prima facie case of discrimination under Title VII or 42 upon the plaintiff to prove a prima facie case of racialU.S.C. § 1981 and/or plaintiffs claims are barred by the discrimination by showing the following:applicable statute of limitations. (1) that he belongs to a racial minority; [6] JAC and Local 3 contend that plaintiffs failure to complywith discovery merits dismissal of their claims. Pursuant to (2) that he applied and was qualified for a job for which theFed.R.Civ.P. 37(a), a partys complaint may be dismissed employer was seeking applicants;for failing to appear for a properly noticed deposition orfor failing to respond to properly served interrogatories. The (3) that, despite his qualifications, he was rejected; andCourt may impose this sanction directly, without first issuing *722 (4) that after his rejection, the position remainedan order to compel discovery. Charter House Insurance open and the employer continued to seek applicants fromBrokers, Ltd. v. New Hampshire Insurance Co., 667 F.2d 600, persons of complainants qualifications.604 (7th Cir.1981). Cf. Bell & Beckwith v. United States ofAmerica, Internal Revenue Service, 766 F.2d 910, 912 (6th McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,Cir.1985) (no abuse of discretion in dismissing a claim for 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Therefore, infailure to appear at deposition even though there was no order order to raise an inference of discrimination, a plaintiff mustcompelling attendance). Furthermore, this Court issued an © 2012 Thomson Reuters. No claim to original U.S. Government Works. 5
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687eliminate the two most common reasons why an applicant provided in this rule, an adversefor employment is rejected—either lack of qualifications or party may not rest upon the merelack of work. Gay v. Waiters & Lunchmens Union, Local allegations or denials of the adverseNo. 30, 694 F.2d 531, 547 (9th Cir.1982), citing International partys pleading, but the adverseBrotherhood of Teamsters v. United States, 431 U.S. 324, partys response, by affidavits or as325, 358 n. 44, 97 S.Ct. 1843, 1849–50, 1866 n. 44, 52 otherwise provided in this rule, mustL.Ed.2d 396 (1977). set forth specific facts showing that there is a genuine issue for trial. IfPlaintiffs allege that Local 3s failure to refer black the adverse party does not so respond,brickmasons for work constitutes a racially discriminatory summary judgment, if appropriate,practice. However, the collective bargaining agreement shall be entered against the adversedoes not provide Local 3 with any involvement in the party.hiring process. Local 3 does not have a referral procedure.Therefore, contractors are not required to contact the union Fed.R.Civ.P. 56(e).for new employees. Many of plaintiffs alleged claims ofdiscrimination stem from an out-of-work list. However, the Therefore, once JAC and Local 3 have made and supportedlist was discontinued in May, 1984. See JAC and Local 3 their motions for summary judgment, plaintiffs may not restMotions, Cappelletty Affidavit. Furthermore, any claims of upon their pleadings but must set forth specific facts, therebydiscriminatory treatment regarding pension fund benefits are creating a genuine issue for trial.within the preview of the fund administrator and not within [10] [11] However, prior to filing a lawsuit under Titlethe control of Local 3. Id. VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000ePlaintiffs contend that the Supreme Courts decision in et seq., the claimant must file an administrative chargeGoodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, of discrimination with the Equal Employment Opportunity96 L.Ed.2d 572 (June 19, 1987) has a severe impact on Commission (EEOC). Rasimas v. Michigan Department ofthe issues in this case. However, plaintiffs incorrectly state Mental Health, 714 F.2d 614, 620 (6th Cir.1983), cert.that this decision holds that the union violates both Title denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984).VII and Section 1981 by passively sitting by and failing In “deferral states” such as Ohio, where the EEOC defers toto affirmatively oppose racially discriminatory employment the state agency established to investigate such charges ofpractices. Plaintiffs Opposition to Defendant Unions Motion discrimination, the EEOC charge must be filed within 300for Summary Judgment at 2. The Supreme Court explicitly days after the alleged unlawful act. *723 42 U.S.C. § 2000e–stated that “[w]e need not discuss this rather abstract 5(e) (1981); Rasimas, 714 F.2d at 621.observation, for the court went on to say that the evidence [12] When a charge is submitted to both the EEOC andproves ‘far more’ than mere passivity.” Id. 482 U.S. at ––––, the OCRC, the EEOC will not formally file its charge of107 S.Ct. at 2623. The Courts holding in Goodman is that a discrimination until after the state agency has terminatedunion may not fail to pursue properly submitted grievances its proceedings or 60 days have elapsed since the filing“solely because the claims assert racial bias and would be of the state administrative charge, whichever occurs earlier.very troublesome to process.” Id. 482 U.S. at ––––, 107 Rasimas, 714 F.2d at 621. Therefore, the state administrativeS.Ct. at 2625. In their responsive motion plaintiffs have charge of discrimination must generally be filed within 240not specifically identified any instance in which Local 3 days of the alleged unlawful practice in order to preserve thefailed to pursue a properly submitted grievance. Furthermore, claimants right to file a Title VII lawsuit in federal court.Local 3 has never refused to assert any grievance claiming Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct.discriminatory treatment by an employer nor have any of 2486, 2491 n. 16, 65 L.Ed.2d 532 (1980).these plaintiffs filed such a grievance with Local 3. See Local3 Motion, Cappalletty Affidavit. The claimant in an EEOC administrative proceeding may bring a civil action in federal court against the respondentPursuant to the criteria of Fed.R.Civ.P. 56(e); named in the charge of discrimination within ninety days [w]hen a motion for summary after issuance by the EEOC of a right to sue letter, which the judgment is made and supported as EEOC issues either if it dismisses the charge or if it fails to © 2012 Thomson Reuters. No claim to original U.S. Government Works. 6
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687commence a civil action itself within the statutory period. 42 dismissal for failure to comply with this Courts order and theU.S.C. § 2000e–5(f)(1) (1981). rules of civil procedure. Therefore, JAC and Local 3s motions pertaining to Brown Sr. are well taken. [13] Section 1981 of Title 42 has no direct statute oflimitations. Therefore, the federal courts are required to Plaintiff Brown Jr. has no claim of discrimination againstapply the closest analogous state statute of limitations. The JAC. Brown Jr. Deposition at 25. Brown has had no contactSixth Circuit Court of Appeals has held that in Ohio the with Local 3 since 1977. Id. at 29. Since any claims ofappropriate statute of limitations is the one year statute for discrimination against Local 3 occurred before 1977, Browncertain torts, Ohio Rev.Code § 2305.11. Demery v. City of Jr.s claims of discrimination against Local 3 are barred byYoungstown, 818 F.2d 1257 (6th Cir.1987). In Demery, the the statute of limitations. Therefore, *724 JAC and Local 3scourt recognized that the statute of limitations in § 1981 motions pertaining to Brown Jr. are well taken.actions was not a settled issue in the Sixth Circuit. Demery,at 1261–62 (Guy, J., concurring); Mason v. Owens–Illinois, Plaintiff Cantrell has no claim of discrimination against JAC.Inc., 517 F.2d 520 (6th Cir.1975) (application of the six-year Cantrell Deposition at 46–47. Cantrell claims that Local 3statute of limitations); Sutton v. Bloom, 710 F.2d 1188 (6th discriminated against him on two occasions, both of whichCir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 occurred before 1983. Id. at 57–58. Cantrell filed a chargeL.Ed.2d 221 (1984), (application of the six-month statute of of discrimination with the EEOC on May 3, 1985. Cantrellslimitations). Furthermore, after Wilson v. Garcia, 471 U.S. claims of discrimination against Local 3 are barred by the261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), was decided, applicable statute of limitations. Therefore, JAC and Local 3sthe statute of limitations in § 1983 and § 1981 actions motions pertaining to Cantrell are well taken.became less clear in each circuit. Therefore, since the law Plaintiff Clint claims that JAC discriminated against Clinthas been “erratic and inconsistent, without clear precedent by not accepting him for the apprenticeship program inon which plaintiff could reasonably rely in waiting to file 1980. Clint Deposition at 37–38. Clint claims that Local 3suit,” Goodman v. Lukens Steel Co., 482 U.S. 656, ––––, 107 discriminated against him in connection with JACs failureS.Ct. 2617, 2622 n. 8, 96 L.Ed.2d 572 (1987), the retroactive to accept him into the apprenticeship program in 1980. Id.application of Demery to this proceeding is not unfair or at 39. Clint filed a charge of discrimination with the EEOCotherwise violative of the principles of Chevron Oil Co. v. on June 24, 1985. Clint failed to answer JAC and LocalHuson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). See 3s interrogatories. Clints claims of discrimination againstalso McSurely v. Hutchison, 823 F.2d 1002 (6th Cir. July 24, JAC and Local 3 are barred by the applicable statute of1987); Saint Francis College v. Majid Ghaidon Al–Khazraji, limitations. Furthermore, Clint is subject to dismissal for his481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (May 18, 1957) failure to comply with this Courts order and the rules of civil(clearly establish precedent thereby negating the application procedure. Therefore, JAC and Local 3s motions pertainingof retroactivity). to Clint are well taken.Plaintiff Alsup has no claim of discrimination against JAC. Plaintiff Foster has no claim of discrimination against JAC.Alsup Deposition at 20. Alsups claims of discrimination Foster Deposition at 17. Fosters claims of discriminationagainst Local 3 occurred in 1982. Id. at 21, 24 & 30. Alsups against Local 3 occurred in 1971–74 as a result of Local 3sclaims of discrimination against Local 3 are barred by the failure to reimburse Foster for the partial payment of initiationstatute of limitations. Therefore, JAC and Local 3s motions fees. Id. at 17–18. Fosters claims of discrimination againstpertaining to Alsup are well taken. Local 3 are barred by the statute of limitations. Therefore,Plaintiff Brown Sr. has no claim of discrimination against JAC and Local 3s motions pertaining to Foster are well taken.JAC. Brown Sr. Deposition at 8–9. Brown Sr. has had Since plaintiff Garcias application with JAC in 1953–54,no contact with Local 3 since before 1975. Id. at 12–13. Garcia has had no contact with JAC. Garcia Deposition atFurthermore, Brown Sr. has failed to answer JAC or Local 30. Garcia has had no claim of discrimination against Local 33s interrogatories. Brown Sr. filed a charge of discrimination since 1979. Id. at 32. Garcias claims of discrimination againstwith the EEOC on May 23, 1985. Since any claim of JAC and Local 3 are barred by the statute of limitations.discrimination against Local 3 occurred before 1975, Brown Therefore, JAC and Local 3s motions pertaining to GarciaSr.s claims of discrimination against Local 3 are barred by the are well taken.applicable statute of limitations. Also, Brown Sr. is subject to © 2012 Thomson Reuters. No claim to original U.S. Government Works. 7
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 May 23, 1985. Hunters claims of discrimination against JACPlaintiff Gould has never applied to JAC and has had and Local 3 are barred by the applicable statute of limitations.no claim of discrimination or mistreatment by JAC since Therefore, JAC and Local 3s motions pertaining to Hunter1979. Gould Deposition at 12. Gould has had no claim of are well taken.discrimination against Local 3 since 1979. Goulds claims ofdiscrimination against JAC and Local 3 are barred by the Plaintiff Legare has no claim of discrimination against JAC.statute of limitations. Therefore, JAC and Local 3s motions Legare Deposition at 17. Since 1979 Legare has had no claimpertaining to Gould are well taken. of discrimination against Local 3. Legare filed a charge of discrimination with the EEOC on May 23, 1985. LegaresPlaintiff Harris has no claim of discrimination against JAC. claims of discrimination against Local 3 are barred by theHarris Deposition at 13–14. Harris claims of discrimination applicable statute of limitations. Therefore, JAC and Local 3sagainst Local 3 regard Local 3s referral procedure and the motions pertaining to Legare are well taken.out-of-work list. The out-of-work list was discontinued in1984. Therefore, any claims of discrimination regarding the Plaintiff Mars has had no claim of discrimination againstout-of-work list are barred by the statute of limitations. JAC since 1979. Mars Deposition at 66. Mars claims ofFurthermore, Local 3 is not a referral hall. See Cappelletty discrimination against Local 3 involve the out-of-work listAffidavit. Therefore, pursuant to the criteria of Fed.R.Civ.P. which was discontinued in 1984. Id. at 66. Also, Mars56, there is no genuine issue of material fact regarding Harris claims discrimination while working at The University ofclaims of discrimination agains Local 3. JAC and Local 3s Toledo in 1983. Id. at 73–77. Mars charges Local 3 withmotions pertaining to Harris are well taken. discriminating against him by never appointing him to a committee. However, Mars never asked for an appointment.Plaintiff Hollis has no claim of discrimination against JAC. Id. at 38. Mars claims of discrimination against Local 3 areHollis Deposition at 15. Hollis claim of discrimination barred by the statute of limitations. Furthermore, pursuant toagainst Local 3 occurred in 1982. Id. at 17–18. Hollis filed the criteria of Fed.R.Civ.P. 56, Mars has failed to establisha charge of discrimination with the EEOC on May 3, 1985. a genuine issue of material fact to support his claim ofHollis claims of discrimination against Local 3 are barred discrimination against Local 3. Therefore, JAC and Local 3sby the applicable statute of limitations. Therefore, JAC and motions pertaining to Mars are well taken.Local 3s motions pertaining to Hollis are well taken. Plaintiffs Meacham and Walker failed to appear at theirPlaintiff Holmes failed to appear at the properly noticed scheduled depositions. Also, Meacham and Walker failed todeposition. In answers to interrogatories, Holmes revealed respond to JAC and Local 3s interrogatories. Therefore, sincethat he never applied to JAC and the only claim of Meacham and Walker failed to comply with this Courts orderdiscrimination against Local 3 occurred in 1944. Holmes is and failed to attend the properly noticed deposition, JAC andsubject to dismissal for failure to appear at the deposition. Local 3s motions pertaining to Meacham and Walker are wellFurthermore, any claims of discrimination against Local 3 are taken.barred by the statute of limitations. Therefore, JAC and Local3s motions pertaining to Holmes are well taken. Plaintiff Meredith has had no claim of discrimination against JAC since 1979. Meredith Deposition at 10. Merediths claimsPlaintiff Hughes claims of discrimination against JAC of discrimination against Local 3 regard Local 3s failure tooccurred between 1972– *725 75. Hughes Deposition at refer him for employment. Id. at 10–11 & 15. However, since33 & 35. Holmes claim of discrimination against Local Local 3 is not a hiring hall, Meredith has failed to establish3 occurred during Holmes apprenticeship between 1972 a genuine issue of fact to support his claim of discriminationand 1974 or 1975. Id. at 36. Hughes filed a charge of against Local 3. See Cappalletty Affidavit. Furthermore,discrimination with the EEOC on May 3, 1985. Hughes Merediths claims of discrimination against JAC are barredclaims of discrimination are barred by the applicable statute of by the statute of limitations. Therefore, JAC and Local 3slimitations. Therefore, JAC and Local 3s motions pertaining motions pertaining to Meredith are well taken.to Hughes are well taken. Plaintiff Mullins has had no claim of discrimination againstPlaintiff Hunter has had no claim of discrimination against JAC or Local 3 since 1979. Mullins Deposition at 13–16.JAC or Local 3 since 1979. Hunter Deposition at 29 & 26– Mullins claims of discrimination against JAC or Local 3 are27. Hunter filed a charge of discrimination with the EEOC on © 2012 Thomson Reuters. No claim to original U.S. Government Works. 8
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 charge of discrimination with the EEOC on May 3, 1985.barred by the statute of limitations. Therefore, JAC and Local Since Local 3 was not a hiring hall, Sledge has failed to3s motions pertaining to Mullins are well taken. establish a genuine issue of material fact to support his claimPlaintiff Proctor has no claim of discrimination or unfair of discrimination against Local 3. See Cappelletty Affidavit.treatment against JAC. Proctor Deposition at 12–13. Since Furthermore, Sledges claims of discrimination against JAC1979, Proctor has had no claim of discrimination against are barred by the applicable statute of limitations. Therefore,Local except he feels he is entitled to additional pension fund JAC and Local 3s motions pertaining to Sledge are wellbenefits. Id. at 15–17. Proctor filed a charge of discrimination taken.with the EEOC on May 3, 1985. However, since Local 3 has Plaintiff Wallace has no claim of discrimination against JAC.no involvement in the pension fund benefits, pursuant to the Wallace Deposition at 38. Wallace retired as a brick mason incriteria of Fed.R.Civ.P. 56, Proctor has failed to establish a 1979 and has had no contact with Local 3 since 1979. Id. atgenuine issue of fact to support his claim fo discrimination 38. Any claims of discrimination against Local 3 are barredagainst Local 3. See Cappelletty Affidavit. Furthermore, any by the statute of limitations. Therefore, JAC and Local 3sclaims of discrimination by Local 3 occurring before 1979 are motions pertaining to Wallace are well taken.barred by the statute of limitations. Therefore, JAC and Local3s motions pertaining to Proctor are well taken. Plaintiff Watson has no claim of discrimination against JAC. Watson Deposition at 38. Furthermore, Watson cannotPlaintiff Robertson has no claim of discrimination against identify any specific acts of discrimination by Local 3 exceptJAC or Local 3. Robertson Deposition at 15 & 22. Therefore, a comment by a Local 3 agent asking Watson why he had *726 JAC and Local 3s motions pertaining to Robertson are not retired. Id. at 47, 52 & 44. Since the comment does notwell taken. establish any genuine issue of fact to support Watsons claimsPlaintiff Angelo failed to appear at the properly noticed of discrimination and since Watson cannot identify any otherdeposition. However, in response to JACs interrogatories, incidents, Watson has failed to establish a genuine issueAngelo admitted that he never applied to JAC. In response of material fact pursuant to the criteria of Fed.R.Civ.P. 56.to Local 3s interrogatories, Angelos claims of discrimination Therefore, JAC and Local 3s motions pertaining to Watsonagainst Local 3 are in connection with the out-of-work list and are well taken.discriminatory testing prior to 1950. Angelo filed a charge THEREFORE, for the foregoing reasons, good causeof discrimination with the EEOC on May 3, 1985. Since the appearing, it isout-of-work list was discontinued in 1984, Angelos claimsof discrimination are barred by the statute of limitations. ORDERED that JACs motion for summary judgment or,Therefore, JAC and Local 3s motions pertaining to Angelo in the alternative, motion to dismiss be, and hereby is,are well taken. GRANTED; and it isPlaintiff Will has no claim of discrimination against JAC. FURTHER ORDERED that Local 3s motion for summaryWill Deposition at 14. Will has had no claim of discrimination judgment or, in the alternative, motion to dismiss be, andagainst Local 3 since 1978. Id. at 23. Wills claims of hereby is, GRANTED; and it isdiscrimination against Local 3 are barred by the statute oflimitations. Therefore, JAC and Local 3s motions pertaining FURTHER ORDERED that JAC and Local 3s motion toto Will are well taken. vacate the trial date be, and hereby is, DENIED as moot.Plaintiff Sledge has had no claim of discrimination against Parallel CitationsJAC since 1979. Sledge Deposition at 29–30. Sledges claimsof discrimination against Local 3 regard Local 3s failure 45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. Pto refer him for employment. Id. at 45–49. Sledge filed a 37,687Footnotes1 Plaintiffs have not opposed JACs motion. On August 25, 1987, plaintiffs response to Local 3s motion was filed. Plaintiffs response was filed twenty-five days after Local 3s motion was filed. Pursuant to L.Civ.R. 3.01(3) “each party opposing this motion shall serve and file within ten (10) days thereafter a brief written statement of reasons in opposition to the motion and a list of the authorities on © 2012 Thomson Reuters. No claim to original U.S. Government Works. 9
    • Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687 which he relies.” (Emphasis added.) L.Civ.R. 3.01(3). Therefore, pursuant to L.Civ.R. 3.01(3), which must be read in conjunction with Fed.R.Civ.P. 6(a), plaintiffs were required to file their brief within 10 days. Since plaintiffs have not requested an extension of time in which to file their response, this response is not timely.End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 10
    • EXHIBIT "D"
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216... West Headnotes (12) [1] Civil Rights Exhaustion of state or local remedies Under the section of the Age Discrimination in Employment Act which provides that in the case of an alleged unlawful practice occurring in a state which has a law prohibiting age discrimination in employment and authorizing aInvoluntarily retired employee brought suit against his state authority to grant or seek relief from suchformer employer, charging that he had been forced to retire discriminatory practice, no suit may be broughtbecause of his age in violation of the Age Discrimination in under the ADEA before the expiration of 60 daysEmployment Act. The United States District Court for the after proceedings have been commenced underSouthern District of Iowa denied the employers motion to the state law, an aggrieved person must resortdismiss, and the employer appealed. The Court of Appeals, to appropriate state remedies before bringing580 F.2d 298, affirmed. Certiorari was granted, and the age discrimination suit in federal court. AgeUnited States Supreme Court, Mr. Justice Brennan, held Discrimination in Employment Act of 1967, §§that: (1) under the Age Discrimination in Employment Act, 7(c), 14(b), 29 U.S.C.A. §§ 626(c), 633(b).resort to administrative remedies by claimants in stateswith agencies empowered to remedy age discrimination is 54 Cases that cite this headnotemandatory, not optional, and suit in federal court may notbe brought under the ADEA unless the claimant has first [2] Civil Rightscommenced a proceeding with the appropriate state agency; Deferral to state agencies; time(2) the fact that age discrimination complainants may filecomplaints with state and federal agencies simultaneously Civil Rightsdoes not permit age discrimination complainants to ignore Exhaustion of state or local remediesstate remedies; (3) though the ADEA requires that the Though the Age Discrimination in Employmentcomplainant commence state proceedings it does not require Act makes resort to administrative remediesthat the complainant commence those proceedings within mandatory in states with agencies empoweredthe time period allotted by state law in order to preserve a to remedy age discrimination in employment, aright of action under the ADEA, and (4) the complainant person aggrieved by alleged age discrimination iscould comply with ADEA requirements by filing a signed not required by the ADEA to commence the statecomplaint with the Iowa State Civil Rights Commission, proceedings within the time limit specified byeven though the 120-day Iowa limitations period of age state law. Age Discrimination in Employment Actdiscrimination claims had passed. of 1967, §§ 7(c), 14(b), 29 U.S.C.A. §§ 626(c), 633(b).Judgment of the Court of Appeals reversed and remanded. 41 Cases that cite this headnoteMr. Justice Blackmun concurred and filed opinion.Opinion on remand, 602 F.2d 183. [3] Civil Rights Exhaustion of state or local remediesMr. Justice Stevens concurred in part and dissented in part Civil Rightsand filed opinion in which Mr. Chief Justice Burger and Mr. Time for proceedings; limitationsJustice Powell and Mr. Justice Rehnquist joined. By enacting the section of the Civil Rights Act of 1964 which provides that in the case of an alleged unlawful employment practice occurring in a state which has a law prohibiting the alleged EXHIBIT "E" © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216... unlawful practice and establishing or authorizing settled to the satisfaction of the grievant in state a state authority to grant or seek relief from proceedings. Age Discrimination in Employment such a practice, no charge may be filed before Act of 1967, § 14(b), 29 U.S.C.A. § 633(b); Civil the expiration of 60 days after proceedings Rights Act of 1964, § 706(b) as amended 42 have been commenced under state law, Congress U.S.C.A. § 2000e-5(c). intended to screen from the federal courts those civil rights problems that could be settled to 18 Cases that cite this headnote the satisfaction of the grievant in a voluntary and localized manner; the section is intended [6] Civil Rights to give state agencies a limited opportunity to Existence of other remedies; exclusivity resolve problems of employment discrimination Civil Rights and thereby to make resort to federal relief Existence of other remedies; exclusivity unnecessary. Civil Rights Act of 1964, § 706(b) The Age Discrimination in Employment Act as amended 42 U.S.C.A. § 2000e-5(c). permits grievants to file with state and federal 114 Cases that cite this headnote agencies simultaneously in order to expedite the processing of age discrimination claims; the premise for this difference is that the[4] Statutes delay inherent in sequential state and federal Statutes Relating to the Same Subject Matter administrative jurisdiction would be particularly in General prejudicial to the rights of older citizens to whom In view of fact that Title VII and the Age relatively few productive years are left. Age Discrimination in Employment Act share the Discrimination in Employment Act of 1967, §§ common purpose to eliminate discrimination in 7(d), 14(a, b), 29 U.S.C.A. §§ 626(d), 633(a, b). the work place and where the language of a certain section of the ADEA was almost in 15 Cases that cite this headnote haec verba with a section of Title VII and the legislative history of the ADEA provision [7] Statutes indicated that its source was the Title VII Legislative construction provision, court was warranted in concluding that For purposes of statutory construction, legislative Congress intended that construction of the ADEA observations made years after the enactment of provision follow that of the parallel section of a statute are in no sense part of the legislative Title VII. Age Discrimination in Employment Act history; it is the intent of the Congress that of 1967, § 14(b), 29 U.S.C.A. § 633(b); Civil enacted the section that controls. Rights Act of 1964, § 706(b) as amended 42 U.S.C.A. § 2000e-5(c). 22 Cases that cite this headnote 254 Cases that cite this headnote [8] Statutes Legislative hearings, reports, etc[5] Civil Rights Exhaustion of state or local remedies Whatever evidence concerning Congress intent in enacting a certain provision might be provided Like the parallel section of the Civil Rights Act by a committee report written 11 years later of 1964, the section of the Age Discrimination was plainly insufficient to overcome clear and in Employment Act which sets forth mandatory convincing evidence concerning congressional procedures to be followed by age discrimination intent at the time of the enactment. complainants in states with agencies empowered to remedy age discrimination in employment 28 Cases that cite this headnote was intended to screen from federal courts those discrimination complaints that might be [9] Civil Rights © 2012 Thomson Reuters. No claim to original U.S. Government Works. 2
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216... Time for proceedings; limitations explicit terms and that those periods adequately For purposes of the section of the Age protected defendants against stale claims, the Discrimination in Employment Act which Supreme Court would not attribute to Congress provides that if a state authority imposes an intent to add to those explicit requirements by requirements other than a requirement of the implication and to incorporate by reference into filing of a written and signed statement of the the ADEA the various state age discrimination facts upon which the proceeding is based, an statutes of limitations. Age Discrimination in age discrimination proceeding shall be deemed Employment Act of 1967, §§ 7(d, e), 14(b), 29 to have commenced at the time such statement U.S.C.A. §§ 626(d, e), 633(b). is sent by registered mail to the appropriate 30 Cases that cite this headnote state authority, state limitations periods are requirements “other than a requirement of the filing of a written and signed statement of the [12] Civil Rights facts” and, therefore, even if a state were to make Time for proceedings; limitations timeliness a precondition for commencement, Even though the 120-day Iowa statute of rather than following the more typical pattern limitations on age discrimination claims had run, of making untimeliness an affirmative defense, a complainant could comply with the mandatory state proceeding would nevertheless be deemed requirement of the Age Discrimination in commenced for purposes of the ADEA as soon Employment Act that he first resort to state as the complaint is filed. Age Discrimination in administrative remedies by filing a signed Employment Act of 1967, § 14(b), 29 U.S.C.A. complaint with the Iowa State Civil Rights § 633(b). Commission. Age Discrimination in Employment Act of 1967, § 14(b), 29 U.S.C.A. § 633(b). 126 Cases that cite this headnote 23 Cases that cite this headnote[10] Civil Rights Exhaustion of state or local remedies The section of the Age Discrimination in Employment Act which requires an aggrieved person to resort to appropriate state **2068 *750 Syllabus * administrative proceedings before bringing suit Section 14(b) of the Age Discrimination in Employment Act in federal court was intended only to give state of 1967 (ADEA) provides that in the case of an alleged agencies a limited opportunity to settle grievances unlawful practice occurring in a State which has a law of ADEA claimants in a voluntary and localized prohibiting discrimination in employment because of age manner so that the claimants thereafter have no and authorizing a state authority to grant and seek relief need or desire for independent federal relief; from such discriminatory practice, no suit may be brought individuals should not be penalized if states under § 7(c) of the ADEA before the expiration of 60 days decline, for whatever reason, to take advantage after proceedings have been commenced under the state of these opportunities. Age Discrimination in law, unless such proceedings have been earlier terminated. Employment Act of 1967, § 14(b), 29 U.S.C.A. Section 14(b) also provides that if any requirement for the § 633(b). commencement of such proceedings is imposed by a state 118 Cases that cite this headnote authority other than a requirement of a filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been[11] Civil Rights commenced for the purposes of § 14(b) at the time such Time for proceedings; limitations statement is sent by registered mail to the appropriate state In view of fact that the Age Discrimination in authority. Respondent, who had been involuntarily retired Employment Act set forth limitations periods in after 23 years of employment by petitioner company, filed © 2012 Thomson Reuters. No claim to original U.S. Government Works. 3
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216...with the United States Department of Labor a notice of intentto sue the company under the ADEA, charging that he had 2. However, a grievant is not required by § 14(b) to commencebeen forced to retire because of his age in violation of the state proceedings within time limits specified by state law.Act. Upon respondents inquiry, the Department informed Pp. 2073-2075.him that the ADEA contained no requirement that he file a (a) By its terms, § 14(b) requires only that state proceedingsstate complaint in order to preserve his federal rights. After be “commenced” 60 days before federal litigation isfederal conciliation efforts failed, respondent brought suit instituted, and use of the word “commenced” strongly impliesagainst petitioner company and company officials in Federal that state limitations periods are irrelevant. This implicationDistrict Court, which denied petitioners motion to dismiss is made express by the provision in § 14(b) that if a statethe complaint on the grounds that the Iowa State Civil Rights authority imposes requirements “other than a requirementCommission was empowered to remedy age discrimination of the filing of a written and signed statement of the factsin employment and that § 14(b) required resort to this state upon which the proceeding is based,” the proceeding shallremedy prior to the commencement of the federal suit. The be deemed to have been commenced for purposes of §Court of Appeals affirmed. 14(b) at the time such statement is sent by registered mailHeld: to the appropriate state authority. State limitations periods are requirements other than that specified in § 14(b) and,1. Under § 14(b), resort to administrative remedies by thus, even if a State were to make timeliness a preconditionclaimants in States with agencies empowered to remedy age for commencement, a state proceeding will be deemeddiscrimination in employment (deferral States) is mandatory, commenced for purposes of § 14(b) as soon as the complaintnot optional, and federal suit **2069 may not be brought is filed. P. 2073.under the ADEA unless the claimant has first commenced aproceeding with the appropriate state agency. Pp. 2071-2073. (b) This construction of the statute is consistent both with the ADEAs remedial purposes and with the purposes of § 14(b),(a) Since the ADEA and Title VII of the Civil Rights Act which does not stipulate an exhaustion requirement, but isof 1964 *751 share the common purpose of the elimination intended only to give state agencies a limited opportunity toof discrimination in the workplace, since the language of § settle the grievances of ADEA claimants in a voluntary and14(b) is almost in haec verba with § 706(c) of Title VII, which localized manner so that the grievants thereafter have no needhas been interpreted to require individuals in deferral States or desire for independent federal relief. *752 The ADEAsto resort to appropriate state proceedings before bringing suit structure-setting forth limitations periods in explicit terms inunder Title VII, and since the legislative history of § 14(b) §§ 7(d) and (e), not § 14(b)-reinforces the conclusion thatindicates that its source was § 706(c), it may be properly state procedural defaults cannot foreclose federal relief andconcluded that Congress intended that the construction of § that state limitations periods cannot govern the efficacy of the14(b) should follow that of § 706(c). P. 2071. federal remedy. Pp. 2074-2075.(b) Claimants do not have the option to ignore state remedies 3. Even though Iowas 120-day statute of limitations hasmerely because under the ADEA, unlike Title VII, they run, respondent may yet comply with the requirements of §may file with state and federal agencies simultaneously. The 14(b) by simply filing a signed complaint with the Iowa StateADEA permits concurrent rather than sequential state and Civil Rights Commission. That Commission must be givenfederal administrative jurisdiction in order to expedite the an opportunity to entertain respondents grievance beforeprocessing and settling of age-discrimination claims, and thus his federal litigation can continue. Meanwhile the federalthe possibility of concurrent state and federal cognizance does suit should be held in abeyance, rather than be dismissednot support the construction of § 14(b) that ADEA grievants with leave to refile, because respondent has already filed amay ignore state remedies altogether. A Committee Report timely federal complaint and to require a second filing wouldaccompanying 1978 ADEA amendments which suggested serve no purpose other than the creation of an additionalthat resort to state remedies should be optional under § 14(b) procedural technicality. If respondents state complaint isis insufficient to overcome the clear and convincing evidence subsequently dismissed as untimely, he may then return tothat Congress, in 1967, intended § 14(b) to have the same federal court; but until that happens, or **2070 until 60 daysmeaning as § 706(c). Pp. 2071-2073. have passed without a settlement, respondent must pursue his state remedy. P. 2076. © 2012 Thomson Reuters. 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    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216... holdings, it is not *754 necessary to address the question of580 F.2d 298, reversed and remanded. the circumstances, if any, in which failure to comply with § 14(b) may be excused.Attorneys and Law FirmsJames W. Gladden, Jr., Chicago, Ill., for petitioners. IAllan A. Ryan, Jr., Washington, D. C., for the U. S., as amicus Respondent Joseph Evans was employed by petitioner Oscarcuriae, supporting respondent, by special leave of Court. Mayer & Co. for 23 years until his involuntary retirement in January 1976. On March 10, 1976, respondent filed with theMark W. Bennett, Des Moines, Iowa, for respondent. United States Department of Labor a notice of intent to sueOpinion the company under the ADEA. Respondent charged that he had been forced to retire because of his age in violation of the*753 Mr. Justice BRENNAN delivered the opinion of the Act. At approximately this time respondent inquired of theCourt. Department whether he was obliged to file a state complaint in order to preserve his federal rights. The Department informedSection 14(b) of the Age Discrimination in Employment Act respondent that the ADEA contained no such requirement.of 1967 (ADEA), 81 Stat. 607, as set forth in 29 U.S.C. § Relying on this official advice, respondent refrained from633(b), provides in pertinent part: resorting to state proceedings. On March 7, 1977, after federal conciliation efforts had failed, respondent brought suit against“In the case of an alleged unlawful practice occurring petitioner company and company officials in the Unitedin a State which has a law prohibiting discrimination in States District Court for the Southern District of Iowa.employment because of age and establishing or authorizing aState authority to grant or seek relief from such discriminatory Petitioners moved to dismiss the complaint on the groundspractice, no suit may be brought under section 626 of this that the Iowa State Civil Rights Commission was empoweredtitle before the expiration of sixty days after proceedings to remedy age discrimination in employment and that §have been commenced under the State law, unless such 14(b) required resort to this state remedy prior to theproceedings have been earlier terminated: Provided, . . . [i]f commencement of the federal suit. The District Court deniedany requirement for the commencement of such proceedings the motion, and the Court of Appeals for the **2071is imposed by a State authority other than a requirement Eighth Circuit affirmed. 1 580 F.2d 298 (1978). We grantedof the filing of a written and signed statement of the facts certiorari, 439 U.S. 925, 99 S.Ct. 308, 58 L.Ed.2d 318 (1978).upon which the proceeding is based, the proceeding shall be We reverse.deemed to have been commenced for the purposes of thissubsection at the time such statement is sent by registered mailto the appropriate State authority.” IIThis case presents three questions under that section. First, Petitioners argue that § 14(b) mandates that in Stateswhether § 14(b) requires an aggrieved person to resort to with agencies empowered to remedy age discrimination inappropriate state remedies before bringing suit under § 7(c) employment (deferral States) a grievant may not bring suitof the ADEA, 29 U.S.C. § 626(c). Second, if so, whether, *755 under the ADEA unless he has first commenced athe state proceedings must be commenced within time limits proceeding with the appropriate state agency. Respondent,specified by state law in order to preserve the federal right ofon the other hand, argues that the grievant has the optionaction. Third, if so, whether any circumstances may excuse of whether to resort to state proceedings, and that § 14(b)the failure to commence timely state proceedings. requires only that grievants choosing to resort to state remedies wait 60 days before bringing suit in federal court. [1] [2] We hold that § 14(b) mandates that a grievant The question of construction is close, but we conclude thatnot bring suit in federal court under § 7(c) of the ADEA petitioners are correct.until he has first resorted to appropriate state administrativeproceedings. We also hold, however, that the grievant is [3] Section 14(b) of the ADEA was patterned after andnot required by § 14(b) to commence the state proceedings is virtually in haec verba with § 706(c) of Title VII of thewithin time limits specified by state law. In light of these Civil Rights Act of 1964 (formerly 706(b)), 78 Stat. 259, as © 2012 Thomson Reuters. No claim to original U.S. Government Works. 5
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216...redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(c). 2 The the ADEA, by contrast, grievants may file with state andrelevant portion of § 706(c) reads as follows: federal agencies simultaneously. See 29 U.S.C. §§ 626(d) and 633(b). 4 From this respondent concludes that the“In the case of an alleged unlawful employment practice ADEA pays less deference to state agencies and that, as aoccurring in a State, . . . which has a . . . law prohibiting consequence, ADEA claimants have the option to ignore statethe unlawful employment practice alleged and establishing remedies.or authorizing a State . . . authority to grant or seek relieffrom such practice . . ., no charge may be filed . . . by the *757 [6] We disagree. The ADEA permits concurrentperson aggrieved before the expiration of sixty days after rather than sequential state and federal administrativeproceedings have been commenced under the State . . . law, jurisdiction in order to expedite the processing of age-unless such proceedings have been earlier terminated . . . .” discrimination claims. The premise for this difference is that the delay inherent in sequential jurisdiction is particularlyCongress intended through § 706(c) to screen from the federal prejudicial to the rights of “older citizens to whom, bycourts those problems of civil rights that could be settled to definition, relatively few productive years are left.” 113the satisfaction of the grievant in “a voluntary and localized Cong.Rec. 7076 (1967) (remarks of Sen. Javits).manner.” See 110 Cong. Rec. 12725 (1964) (remarks of Sen.Humphrey). The section is intended to give state agencies The purpose of expeditious disposition would not bea limited opportunity to resolve problems of employment frustrated were ADEA claimants required to pursue statediscrimination and thereby to make unnecessary, resort to and federal administrative remedies simultaneously. Indeed,federal relief by victims of the discrimination. See Voutsis simultaneous state and federal conciliation efforts may wellv. Union Carbide Corp., 452 F.2d 889 (CA2 1971). *756 facilitate rapid settlements. There is no reason to conclude,Because state agencies cannot even attempt to resolve therefore, that the possibility of concurrent state and federaldiscrimination complaints not brought to their attention, cognizance supports the construction of § 14(b) that ADEAthe section has been interpreted to require individuals in grievants may ignore state remedies altogether.deferral States to resort to appropriate state proceedingsbefore bringing suit under Title VII. See Love v. Pullman Co., Respondent notes a second difference between the ADEA404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Olson v. and Title VII. Section 14(a) of the ADEA, 29 U.S.C. § 633(a), for which Title VII has no counterpart, provides thatRembrandt Printing Co., 511 F.2d 1228 (CA8 1975). 3 upon commencement of an action under ADEA, all state [4] [5] Since the ADEA and Title VII share a common proceedings are superseded. From this, respondent concludespurpose, the elimination of discrimination in the workplace, that it would be an exercise in futility to require aggrievedsince the language of § 14(b) is almost in haec verba with § persons to file state complaints since those persons may, after706(c), and since the legislative history of § 14(b) indicates only 60 days, abort their involuntary state proceeding bythat its source was § 706(c), we may properly conclude that filing a federal suit.Congress intended that the construction of § 14(b) should We find no merit in the argument. Unless § 14(b) is tofollow that of § 706(c). See Northcross v. Memphis Board be stripped of all meaning, state agencies must be given atof Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 least some opportunity to solve problems of discrimination.L.Ed.2d 48 (1973). We therefore conclude that § 14(b), While 60 days provides a limited time for the state agency tolike § 706(c), is intended to screen from the federal courts act, that was a decision for Congress to make and Congressthose discrimination complaints that might be settled to the apparently thought it sufficient. As Senator Dirksen told thesatisfaction of the grievant in state proceedings. We further Senate during the debates on § 14(b)s predecessor, § 706(c)conclude that prior resort to appropriate state proceedings is of Title VII:required under § 14(b), just as under § 706(c). “[A]t the local level . . . many cases are disposed of in a matter **2072 The contrary arguments advanced by respondent of days, and certainly not more than a few weeks. *758 In thein support of construing § 14(b) as merely optional are case of California, FEPC cases are disposed of in an averagenot persuasive. Respondent notes first that under Title VII of about 5 days. In my own State it is approximately 14 days.”persons aggrieved must file with a state antidiscrimination 110 Cong.Rec. 13087 (1964).agency before filing with the Equal Employment OpportunityCommission (EEOC). See 42 U.S.C. § 2000e-5(c). Under © 2012 Thomson Reuters. No claim to original U.S. Government Works. 6
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216...Respondent argues finally that a Committee Report We start with the language of the section. Section 14(b)that accompanied 1978 ADEA amendments supports his provides, in relevant part, thatconstruction of § 14(b). 5 This Committee Report suggested “no suit may be brought . . . before the expiration of sixtythat resort to state remedies should be optional under § days after proceedings have been commenced under the State14(b). See S.Rep.No. 95-493, pp. 6-7 (1978), adopted in law, unless such proceedings have been earlier terminated.”Joint Explanatory Statement of the Committee of Conference, 29 U.S.C. § 633(b) (emphasis added).H.R.Conf.Rep.No. 95-950, pp. 7, 12 (1978); U.S.Code Cong.& Admin.News 1978, pp. 528, 534. By its terms, then, the section requires only that state proceedings be commenced 60 days before federal litigation [7] [8] We are not persuaded. Senate Report No. 95-493 is instituted; besides commencement no other obligation iswas written 11 years after the ADEA was passed in 1967, placed upon the ADEA grievant. In particular, there is noand such “[l]egislative observations . . . are in no sense part requirement that, in order to commence state proceedings andof the legislative history.” United Airlines, Inc. v. McMann, thereby preserve federal rights, the grievant must file with the434 U.S. 192, 200 n. 7, 98 S.Ct. 444, 449, 54 L.Ed.2d 402 State within whatever time limits are specified by state law.(1977). “It is the intent of the Congress that enacted [the Rather, use of the word “commenced” strongly implies thesection] . . . that controls.” **2073 Teamsters v. United opposite-that state limitations periods are irrelevant-since, byStates, 431 U.S. 324, 354 n. 39, 97 S.Ct. 1843, 1864, way of analogy, under the Federal Rules of Civil Procedure52 L.Ed.2d 396 (1977). Whatever evidence is provided by even a time-barred action may be “commenced” by the filingthe 1978 Committee Report of the intent of Congress in of a complaint. See Fed.Rule Civ.Proc. 3; Magalotti v. Ford1967, it is plainly insufficient to overcome the clear and Motor Co., 418 F.Supp. 430, 434 (ED Mich.1976).convincing evidence that Congress intended § 14(b) to havethe same meaning as § 706(c). We therefore hold that under *760 [9] This implication is made express by the last§ 14(b) of the ADEA, as under § 706(c) of Title VII, resort sentence of § 14(b), which specifically provides:to administrative remedies in deferral States by individualclaimants is mandatory, not optional. 6 “If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of III the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes ofWe consider now the consequences of respondents failure this subsection at the time such statement is sent by registeredto file a complaint with the Iowa State Civil Rights mail to the appropriate State authority.” 29 U.S.C. § 633(b).Commission. Petitioners argue that since Iowas 120-dayage-discrimination *759 statute of limitations has run, State limitations periods are, of course, requirements “othersee Iowa Code §§ 601A.14(1), (15) (1975), it is now too than a requirement of the filing of a written and signedlate for respondent to remedy his procedural omission and statement of the facts upon which the proceeding is based.”that respondents federal action is therefore jurisdictionally Therefore, even if a State were to make timeliness abarred. Respondent pleads that since his failure to file was due precondition for commencement, rather than follow the moreto incorrect advice by the Department of Labor, his tardiness typical pattern of making untimeliness an affirmative defense,should be excused. a state proceeding will be deemed commenced for purposes of § 14(b) as soon as the complaint is filed.Both arguments miss the mark. Neither questions ofjurisdiction nor questions of excuse arise unless Congress **2074 This has been the prevailing interpretation of §mandated that resort to state proceedings must be within time 14(b). See Nickel v. Shatterproof Glass Corp., 424 F.Supp.limits specified by the State. We do not construe § 14(b) to 884 (ED Mich.1976); Magalotti v. Ford Motor Co., supra. 7make that requirement. Section 14(b) requires only that the It is also the prevailing interpretation of § 14(b)s counterpart,grievant commence state proceedings. Nothing whatever in § 706(c) of Title VII, which contains an identical definitionthe section requires the respondent here to commence those of commencement. See Davis v. Valley Distributing Co.,proceedings within the 120 days allotted by Iowa law in order 522 F.2d 827, 831-833 (CA9 1975), cert. denied, *761 429to preserve a right of action under § 7(c). U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977); Olson © 2012 Thomson Reuters. 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    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216...v. Rembrandt Printing Co., 511 F.2d, at 1232; Pinckney v. 97 S.Ct. 2447, 2457, 53 L.Ed.2d 402 (1977). Congress couldCounty of Northampton, 433 F.Supp. 373, 376 n. 1 (ED not have intended to consign federal lawsuits to the “vagariesPa.1976); McAdams v. Thermal Industries, Inc., 428 F.Supp. of diverse state limitations statutes,” ibid., particularly since,156, 161 (WD Pa.1977); De Gideo v. Sperry-Univac Co., in many States, including Iowa, the limitations periods415 F.Supp. 227, 229 (ED Pa.1976); see also White v. Dallas are considerably shorter than the 180-day period allowedIndependent School Dist., 581 F.2d 556, 562 n. 10 (CA5 grievants in nondeferral States by 29 U.S.C. § 626(d)(1). See1978) (en banc) (filing with EEOC tolls state limitations De Gideo v. Sperry-Univac Co., supra, 415 F.Supp., at 231period for federal purposes); Ferguson v. Kroger Co., 545 n.9.F.2d 1034 (CA6 1976) (EEOCs negligent failure to refercharge to state agency within state limitations period does not That Congress regarded incorporation as inconsistent withforeclose federal claim). But see Richardson v. Miller, 446 the federal scheme is made clear by the legislative history ofF.2d 1247 (CA3 1971). § 706(c)s definition of commencement-the same definition later used in § 14(b). Proponents of Title VII were concernedIt is also the EEOCs interpretation of § 14(b), see Case No. that localities hostile to civil rights might enact shamKC7-5-315, CCH EEOC Decisions (1973) ¶ 6024 (1969), and discrimination ordinances for the purpose of frustrating theas such is “entitled to great deference.” Griggs v. Duke Power vindication of federal rights. See 2 B. Schwartz, StatutoryCo., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 128 History of the United States: Civil Rights 1330 (1970). The(1971). statutory definition of commencement as requiring the filing of a state complaint and nothing more was intended to meetThis construction of the statute is fully consistent with the this concern while at the same time avoiding burdensomeADEAs remedial purposes and is particularly appropriate “in case-by-case inquiry into the reasonableness of various statea statutory scheme in which laymen, unassisted by trained procedural requirements. Cf. NAACP v. Alabama ex rel.lawyers initiate the process.” Love v. Pullman Co., 404 U.S., Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488at 527, 92 S.Ct., at 619. (1958). As Senator Humphrey explained to the Senate: [10] It is also consistent with the purposes of § 14(b). “[T]o avoid the possible imposition of onerous StateSection 14(b) does not stipulate an exhaustion requirement. requirements for initiating a proceeding, subsection (b)The section is intended only to give state agencies a limited provides that to comply with the requirement of prior resortopportunity to settle the grievances of ADEA claimants to the State agency, an individual need merely send a writtenin a voluntary and localized manner so that the grievants statement of the facts to the State agency by registered mail.”thereafter have no need or desire for independent federal 2 Schwartz, supra, at 1352.relief. Individuals should not be penalized if States decline,for whatever reason, to take advantage of these opportunities. The strongest argument against this construction of the statuteSee Pacific Maritime Assn. v. Quinn, 465 F.2d 108 (CA9 is that it would permit grievants to avoid state intervention1972). Congress did not intend to foreclose federal relief *764 by waiting until the state statute of limitations hassimply because state relief was also foreclosed. See Voutsis expired and then filing federal suit, thus frustrating the intentv. Union Carbide Corp., 452 F.2d, at 893. 8 of Congress that federal litigation be used as a last resort. *762 [11] The structure of the ADEA reinforces the No reason suggests itself, however, why an employee wouldconclusion that state procedural defaults cannot foreclose wish to forgo an available state remedy. Prior resort tofederal relief and that state limitations periods cannot govern the state remedy would not impair the availability of thethe efficacy of the federal remedy. The ADEAs limitations federal remedy, for the two are supplementary, not mutually exclusive. A complainant would save no time by bypassingperiods are set forth in explicit terms in 29 U.S.C. §§ 626(d) 9 the state remedy since the federal court must, in any event,and **2075 (e), 10 not § 14(b), 29 U.S.C. § 633(b). Sections defer to the State for 60 days, and is required to defer no626(d) and (e) adequately *763 protect defendants against longer. See Davis v. Valley Distributing Co., 522 F.2d 827stale claims. We will not attribute to Congress an intent (CA9 1975); Nickel v. Shatterproof Glass Corp., 424 F.Supp.through § 14(b) to add to these explicit requirements by 884 (ED Mich. 1976). 11implication and to incorporate by reference into the ADEAthe various state age-discrimination statutes of limitations.Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 371, © 2012 Thomson Reuters. No claim to original U.S. Government Works. 8
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216... side of the respondent also affords some indication of the **2076 [12] We therefore hold that respondent may intended interplay of the federal and state legislation.yet comply with the requirements of § 14(b) by simplyfiling a signed complaint with the Iowa State Civil The court acknowledges that the “question of constructionRights Commission. That Commission must be given an is close.” Ante, at 2071. But this is one of those casesopportunity to entertain respondents grievance before his that occasionally appears in the procedural area where it isfederal litigation can continue. Meanwhile, the federal suit more important that it be decided (in order to dispel existingshould be held in abeyance. If, as respondent fears, his state conflict, see ante, at 2073, and n.7) than that it be decidedcomplaint is subsequently dismissed as untimely, respondent correctly.may then return to federal *765 court. 12 But until that *767 Inasmuch as I feel that I can live with the Courtshappens, or until 60 days have passed without a settlement, decision in this case and that, in the long run, justice will notrespondent must pursue his state remedy. be denied to anyone possessed of a valid claim, I join theAccordingly, the judgment of the Court of Appeals is Courts opinion and its judgment.reversed, and the case is remanded to that Court with Mr. Justice STEVENS, with whom THE CHIEF JUSTICE,instructions to enter an order directing the District Court Mr. Justice POWELL, and Mr. Justice REHNQUIST join,to hold respondents suit in abeyance until respondent has concurring in part and dissenting in part.complied with the mandate of § 14(b). 13 Section 14(b) of the Age Discrimination in EmploymentIt is so ordered. Act of 1967, 81 Stat. 607, 29 U.S.C. § 633(b), explicitly states that “no suit may be brought” under the Act until theMr. Justice BLACKMUN, concurring. individual has first resorted to appropriate state remedies.My preference in this case would have been to affirm the Respondent has concededly never resorted to state remedies.judgment of the Court of Appeals. I am so inclined because In my judgment, this means that his suit should not have beenI regard the Age Discrimination in Employment Act to be a brought and should now be dismissed.remedial statute that is to be liberally construed, and because Throughout this litigation both parties have assumed that *766 I feel that an affirmance would give full recognition dismissal would be required if § 14(b) is construed to mandateto that remedial character. In addition, I could be persuaded individual resort to state remedies in deferral States. In Part IIthat state procedures and remedies in existence at the time of its opinion, which I join, the Court so construes the statute.the Act was passed in 1967 were not particularly helpful for However, in Part III of its opinion, the Court volunteers somethe complainant and were procedurally frustrating; that the detailed legal advice about the effect of a suggested course offact that a federal proceeding supersedes one on the state side conduct that respondent may now pursue and then orders thatindicates which is to be dominant; that ADEA proceedings his suit be held in abeyance while he follows that advice.have their analogy in Fair Labor Standards Act litigation andnot in Title VII proceedings; that no waiting period is required Regardless of whether the Courts advice is accurate-abefore a complainant may resort to a federal remedy (whereas, question that should not be answered until some litigant hasin striking contrast, under Title VII, state jurisdiction is raised it-I am unable to join Part III. If respondent shouldexclusive for 60 days); that one could reasonably regard the decide at this point to resort to state remedies, and if hisstatute as affording a complainant the option of filing either complaint there is found to be time barred, and if he shouldon the state side or on the federal **2077 side, and the then seek relief in federal court, the question addressed inconstraints of § 14(b) as applicable only if he pursues the Part III of the Courts opinion-whether § 14(b) requires resortstate remedy; that it seems so needless to require an untimely to state remedies “within time limits specified by the State”-state filing that inevitably, and automatically, is to be rejected; would then be presented. But that question is not presentedthat the legislative history of the 1978 amendments, see now, and I decline to join or to render an advisory opinion onante, at 2072-2073, * while of course not conclusive, might its merits. I would simply order that this suit be dismissed inwell be regarded, because of its positiveness and clarity, as accordance with “the mandate of § 14(b).” Ante, at 2076.shedding at least some helpful illumination upon persistentand continuing congressional intent in and since 1967; andthat the Governments participation as amicus curiae on the © 2012 Thomson Reuters. No claim to original U.S. Government Works. 9
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216...Parallel Citations99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl.Prac. Dec. P 9216, 60 L.Ed.2d 609Footnotes* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.1 The Court of Appeals initially reversed the District Court but on rehearing withdrew its opinion and substituted an opinion affirming the District Court.2 See Hearings on S. 830 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 102 (1967) (testimony of Mr. Biemiller); id., at 228 (1967) (testimony of Mr. Conway).3 Even respondent concedes that under § 706(c) resort to appropriate state proceedings is mandatory, not optional. See Brief for Respondent 18.4 ADEA grievants may file with the State before or after they file with the Secretary of Labor.5 Respondent concedes that the amendments themselves “are not relevant to the questions raised in this case.” Brief for Respondent 3 n. 1.6 This rule, of course, governs only claims for individual relief, such as the present case. Nothing in our decision in anywise disturbs the rule of Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370 n. 8, 45 L.Ed.2d 280 (1975), concerning the rights of unnamed parties in plaintiff class actions.7 A number of cases have reached a similar result upon slightly different theories. See e. g., Skoglund v. Singer Co., 403 F.Supp. 797 (N.H.1975) (timely state complaint not required unless there has been a deliberate bypass of state procedure); Bertsch v. Ford Motor Co., 415 F.Supp. 619 (ED Mich.1976) (timely state complaint not required if state limitations period significantly shorter than 180 days). See also Vaughn v. Chrysler Corp., 382 F.Supp. 143 (ED Mich.1974) (timely state complaint not required if claimant detrimentally relied upon mistaken official advice). Two cases have reached contrary results. See Graham v. Chrysler Corp., 15 FEP Cases 876 (ED Mich.1976); McGhee v. Ford Motor Co., 15 FEP Cases 869 (ED Mich.1976).8 This is made clear by Senator Humphreys remarks to the Senate concerning the limits of federal deference under § 706(c): “[W]e recognized the absolute necessity of providing the Federal Government with authority to act in instances where States and localities did not choose to exercise these opportunities to solve the problem of civil rights in a voluntary and localized manner. The basic rights protected by [Title VII] are rights which accrue to citizens of the United States; the Federal Government has the clear obligation to see that these rights are fully protected. In instances where States are unable or unwilling to provide this protection, the Federal Government must have the authority to act.” 110 Cong.Rec. 12725 (1964).9 Title 29 U.S.C. § 626(d) provides: “No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days notice of an intent to file such action. Such notice shall be filed- “(1) within one hundred and eighty days after the alleged unlawful practice occurred, or “(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. “Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.”10 Title 29 U.S.C. § 626(e) provides: “Sections 255 and 259 of this title shall apply to actions under this chapter.” Title 29 U.S.C. § 255 provides in relevant part: “Any action commenced on or after May 14, 1947 . . . “(a) if the cause of action accrues on or after May 14, 1947-may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.”11 Moreover, even the danger that state remedies will be inadvertently bypassed by otherwise proper ADEA plaintiffs will soon become nonexistent. After July 1, 1979, the EEOC will administer the ADEA. See Reorg. Plan No. 1 of 1978, 3 CFR 321 (1979). Discrimination charges will have to be filed with the EEOC within time limits specified by federal law, and the EEOC already has a regular procedure whereby discrimination complaints are automatically referred to appropriate agencies as soon as they are received. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 10
    • Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl. Prac. Dec. P 9216... See Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); 29 CFR § 1601.13 (1978). Thus, the deference to state agencies required by § 14(b) will soon become automatic. In any event, even if the risk of bypass of state agencies were real, which it is not, States could readily avoid the possibility by extending their limitations periods to 180 days and by tolling their statutes of limitations upon the filing of a timely charge with the Department of Labor. See Davis v. Valley Distributing Co. Cf. Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965).12 Whether Iowa may toll its statute of limitations from the date that respondent contacted the Department of Labor is a question of Iowa law not for our decision. See Iowa Civil Rights Commn v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973).13 Suspension of proceedings is preferable to dismissal with leave to refile. Respondents timely complaint has already satisfied the requirements of 29 U.S.C. § 626(e). “To require a second ‘filing’ by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers initiate the process.” Love v. Pullman Co., supra, 404 U.S., at 526-527, 92 S.Ct., at 619 (charge may be held in suspended animation during deferral period). For this reason, suspension pending deferral is the preferred practice in the federal courts. See Crosslin v. Mountain States Tel. & Tel. Co., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971) (judgment of dismissal for want of jurisdiction arising from failure to defer vacated; case remanded for consideration of stay pending deferral); Gabriele v. Chrysler Corp., 573 F.2d 949, 956 n. 18 (CA6 1978); Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (CA9 1973); Parker v. General Telephone Co. of the Northwest, Inc., 476 F.2d 595, 596 (CA9 1973); Mitchell v. Mid-Continent Spring Co. of Ky., 466 F.2d 24, 26-27 (CA6 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1363, 35 L.Ed.2d 589 (1973); Motorola, Inc. v. EEOC, 460 F.2d 1245, 1246 (CA9 1972); Bertrand v. Orkin Exterminating Co., Inc., 419 F.Supp. 1123, 1130 (ND Ill.1976); Winsey v. Pace College, 394 F.Supp. 1324, 1329 (SDNY1975).* “[A]n individual who has been discriminated against because of age is free to proceed either under state law or under federal law. The choice is up to the individual.” S.Rep.No.95-493, p. 7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H.R.Conf.Rep.No.95-950, pp. 7, 12 (1978); U.S.Code Cong. & Admin.News 1978, p. 510.End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 11
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693 6 Cases that cite this headnote [2] Civil Rights Taxation Discharged employee who brought action under Age Discrimination in Employment Act was required to file a specific request accompanied by an affidavit setting forth computation in terms of hours expended, hourly rate and specific reason for which each item of time that wasDischarged employee brought action under Ohio law and the expended, on the employees request that courtAge Discrimination in Employment Act (ADEA), alleging award him reasonable attorney fees in defendingthat he was discharged due to his age. On, inter alia, against employers motion to dismiss or stay foremployers motion to dismiss or stay, and for preliminary failure to meet jurisdictional requirements. Ageinjunction or summary judgment, the District Court, Rice, Discrimination in Employment Act of 1967, §§J., held that: (1) employee met requirements of ADEA by 14, 14(b), 29 U.S.C.A. §§ 633, 633(b).filing action under the ADEA more than 60 days after hisproceedings were commenced with the Ohio Civil Rights 1 Cases that cite this headnoteCommission; (2) under Ohio law, an age discriminationclaimant who has previously filed a claim with the OhioCivil Rights Commission for purposes of meeting the [3] Civil Rightsrequirements of the (ADEA) is not precluded from filing an Existence of other remedies; exclusivityage discrimination action under Ohio statute addressed solely Election of Remediesto age discrimination; and (3) material issues of fact as to Acts Constituting Electionwhether employee acted under economic duress in executing Under Ohio law, an age discrimination claimantwaiver of his right to sue employer precluded summary who has previously filed a claim with the Ohiojudgment. Civil Rights Commission for purposes of meeting the requirements of the Age Discrimination inMotion denied. Employment Act is not precluded from filing an age discrimination action under Ohio statute West Headnotes (7) addressed solely to age discrimination. Age Discrimination in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Ohio R.C. §[1] Civil Rights 4101.17. Deferral to state agencies; time Terminated employee met requirements for 4 Cases that cite this headnote bringing of action under the Age Discrimination in Employment Act (ADEA) when the Equal [4] Release Employment Opportunity Commission referred Sufficiency in General the employees charge to the Ohio Civil Discharged employees waiver of his right to Rights Commission (OCRC) to meet the sue his employer was supported by adequate referral requirements of the ADEA, and the consideration, where, under terms of the waiver employee commenced the action under the executed by the employee, the employee would ADEA more than 60 days after proceedings were serve as a paid consultant to the employer commenced with the OCRC. Age Discrimination for a period of five months, during which in Employment Act of 1967, §§ 14, 14(b), 29 time employer would continue to provide the U.S.C.A. §§ 633, 633(b). employee with health and life insurance. EXHIBIT "F" © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693 1 Cases that cite this headnote Neil F. Freund, Dayton, Ohio, Thomas J. Manley, Raleigh, N.C., David M. Duwell, Dayton Power & Light Co., Dayton, Ohio, for defendant.[5] Release Reality of assent in general Opinion Discharged employee knowingly waived his right to sue his employer under the Age Discrimination DECISION AND ENTRY OVERRULING in Employment Act, where employee believed DEFENDANTS MOTION TO DISMISS OR at time he was discharged it was because of his STAY (DOC. ## 12); DECISION AND ENTRY age, and employee understood that in executing OVERRULING DEFENDANTS MOTION TO waiver he was waiving right to sue employer. Age DISMISS COUNT III OF PLAINTIFFS AMENDED Discrimination in Employment Act of 1967, §§ 2 COMPLAINT (DOC. # 15); DECISION AND ENTRY et seq., 14(b), 29 U.S.C.A. §§ 621 et seq., 633(b). OVERRULING DEFENDANTS MOTION FOR PRELIMINARY INJUNCTION OR SUMMARY JUDGMENT IN PART AND FINDING SAME[6] Release TO BE MOOT IN PART (DOC. # 19); ORDER Duress STAYING TRIAL ON PLAINTIFFS CLAIMS Statements of discharged employees superior OF AGE DISCRIMINATION PENDING TRIAL that if employee failed to sign waiver to sue ON THE QUESTION OF THE VALIDITY OF agreement employee would receive no additional THE RELEASE EXECUTED BY PLAINTIFF compensation from the employer were not sufficient to support the defense of economic RICE, District Judge. duress, to the validity of the waiver agreement. This case is before the Court on the Motions of the Defendant, Dayton Power & Light Company, to Dismiss or Stay (Doc. # 12), to Dismiss Count III of Plaintiffs Amended Complaint[7] Federal Civil Procedure (Doc. # 15), and for Preliminary Injunction or Summary Employees and Employment Judgment (Doc. # 19). For the reasons briefly set forth below, Discrimination, Actions Involving the Court concludes that Defendants Motion to Dismiss Material issues of fact as to whether a discharged or Stay (Doc. # 12) must be overruled in its entirety; employee acted under economic duress in Defendants Motion to Dismiss Count III of Plaintiffs executing a waiver of his right to sue his employer Amended Complaint (Doc. # 15) must be overruled in its because he feared he would be unable to secure entirety; and Defendants Motion for Preliminary Injunction another job precluded summary judgment in or Summary Judgment (Doc. ## 19) must be overruled in part favor of the employer on the employees action and deemed moot in part. under the Age Discrimination in Employment Act. Age Discrimination in Employment Act of In his Amended Complaint (Doc. # 10), Plaintiff, Arthur 1967, §§ 2 et seq., 14(b), 29 U.S.C.A. §§ 621 et M. Pitts, asserts that “[o]n January 18, 1965, Plaintiff was seq., 633(b). hired as an employee by Defendant where he remained until Plaintiffs employment was terminated by Defendant. 1 Cases that cite this headnote His employment was terminated on October 11, 1985 when he was forced to resign under duress by Defendant and its agents.” (Doc. # 10, at ¶ 5). Plaintiff further contends that “Defendant has arbitrarily, intentionally and willfullyAttorneys and Law Firms discriminated against Plaintiff *529 on the basis of his age concerning Plaintiffs termination of employment.” (Doc. #*528 Charles F. Geidner, Thomas Angelo, III, Dayton, 10, at ¶ 6). In Count I of his Amended Complaint, PlaintiffOhio, for plaintiff. asserts that Defendants actions toward Plaintiff violate 29 U.S.C. § 621, et seq. (Doc. # 10, at ¶ 7). Count II of © 2012 Thomson Reuters. No claim to original U.S. Government Works. 2
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693Plaintiffs Amended Complaint contains Plaintiffs assertion establishing or authorizing a Statethat Defendants actions resulted in a breach of contract (Doc. authority to grant or seek relief from# 10, at ¶ 15). Finally, in Count III of his Amended Complaint, such discriminatory practice, no suitPlaintiff asserts that Defendants actions towards Plaintiff may be brought under Section 626violate Ohio Rev.Code § 4101.17 (Doc. ### 10, at ¶ 18). of this title before the expiration of sixty days after proceedings haveIn its Motion to Dismiss or Stay (Doc. # 12), Defendant been commenced under the State law,asserts that Plaintiff has failed to meet the requirements of unless such proceedings have been§ 14(b) of the Age Discrimination in Employment Act of earlier terminated....1967 (ADEA), in that Plaintiff allegedly failed to resort tothe appropriate state remedies prior to filing suit under the Basically, Defendant contends that although the state of OhioADEA. As a result of said failure, Defendant asserts that this does have a law prohibiting discrimination in employmentaction must be dismissed or these proceedings must be stayed. because of age and has established a state authority (the Ohio Civil Rights Commission (OCRC)) to grant relief,In its Motion to Dismiss Count III of Plaintiffs Amended the Plaintiff has failed to commence proceedings with saidComplaint (Doc. ## 15), Defendant asserts that Plaintiff has authority. This Court finds Defendants argument to beelected to pursue an administrative remedy with the Ohio without merit.Civil Rights Commission (OCRC), and thus, as a matter ofOhio law, he is barred from pursuing the judicial remedy On April 4, 1986, the EEOC referred Plaintiffs EEOC chargeprovided by Ohio Rev.Code § 4101.17. to the OCRC in order to meet the referral requirements of § 14 of the ADEA (Doc. # 14, Exh. A). Plaintiffs Complaint in thisFinally, in its Motion for Preliminary Injunction or Summary action was not filed until June 12, 1986, more than sixty daysJudgment (Doc. ## 19), Defendant asserts that “[i]n return for after proceedings were commenced with the OCRC. Thus,valuable consideration, Plaintiff knowingly and voluntarily Plaintiff has met the requirements of 29 U.S.C. § 633(b).executed a contract waiving any and all claims he might Accordingly, the Court concludes that Defendants Motion tohave against the Defendant arising out of his employment.” Dismiss or Stay (Doc. # 12), must be and hereby is overruledDefendant contends that there is no genuine issue of material in its entirety.fact as to the validity of the agreement signed by Plaintiff andthat Defendant is entitled to enforcement of the agreement as [2] In his Memorandum in Opposition to Defendantsa matter of law. In the alternative, Defendant contends that it Motion to Dismiss or Stay (Doc. # 14), Plaintiff assertsis at least entitled to a preliminary injunction until such time that Defendants claim regarding Plaintiffs alleged failureas the validity of the contract can be determined. The Court to meet the requirements of *530 29 U.S.C. § 633(b) waswill consider each of Defendants motions seriatim. patently frivolous and that Defendant continued to prosecute said claim even after the EEOCs notice of referral to the OCRC was hand-delivered to defense counsel. As a result I. DISCUSSION of Defendants actions in continuing to prosecute said claim,A. Defendants Motion to Dismiss or Stay (Doc. # 12) Plaintiff asks this Court to award him reasonable attorneys fees in defending against Defendants Motion to Dismiss [1] The Court will first consider Defendants Motion to or Stay. If Plaintiff still desires such a sanction, PlaintiffDismiss or Stay (Doc. # 12). As previously discussed, in said should file a specific request with this Court accompanied bymotion Defendant asserts that Plaintiff has failed to meet the an affidavit setting forth the computation in terms of hoursrequirements of § 14(b) of the ADEA as set forth in 29 U.S.C. expended, hourly rate and the specific reason for which each§ 633(b). item of time was expended.Section 633(b) of Title 29 of the United States Code provides B. Defendants Motion to Dismiss Count III of Plaintiffsin pertinent part: Amended Complaint (Doc. # 15) In the case of an alleged unlawful [3] The Court will next consider Defendants Motion to practice occurring in a State which Dismiss Count III of Plaintiffs Amended Complaint (Doc. # has a law prohibiting discrimination 15). Basically, Defendant argues that the fact that a charge in employment because of age and was filed on Plaintiffs behalf with the OCRC (pursuant to © 2012 Thomson Reuters. No claim to original U.S. Government Works. 3
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693Ohio Rev.Code § 4112.05) precludes Plaintiffs claim under Court has dealt with a situation in which a filing pursuantOhio Rev.Code § 4101.17. For the reasons briefly set forth to Ohio Rev.Code § 4101.17 was followed by a filing underbelow, the Court concludes that Defendants argument is Ohio Rev.Code § 4112.05. In Morris, the Ohio Supremewithout merit. Court held that “[a] claimant who has previously filed an age discrimination action under R.C. 4101.17 is not barredAs noted by the Ohio Supreme Court: from filing a claim with the Ohio Civil Rights Commission pursuant to R.C. 4112.05 in order to satisfy the mandatory The Ohio statutory scheme concerning prerequisite to an action under the federal Age Discrimination discrimination is somewhat unusual. in Employment Act.” Id. at 45, 471 N.E.2d at 472 (syllabus) Three sections of the Revised (emphasis added). Thus, while as a general rule, it is true Code provide remedies for age- that “Ohios statutory scheme requires an election” between based employment discrimination. Ohio Rev.Code § 4112.05 and Ohio Rev.Code § 4101.17, the R.C. 4101.17 is addressed solely to Ohio Supreme Court appears to have carved out an exception age discrimination and allows an in situations in which the filing under § 4112.05 is merely aggrieved employee to institute a civil intended to meet the requirements of the ADEA. Id. at 46, 471 action in any court of competent N.E.2d at 473–74. If this Court were to accept Defendants jurisdiction. R.C. 4112.02 is a more position, an Ohio plaintiffs ability to join state and federal inclusive anti-discrimination statute claims for age discrimination would be solely dependent upon and also provides a private cause of whether or not the plaintiff first filed his/her state judicial action for age discrimination. Finally, claim. *531 This Court finds such a distinction to be absurd. R.C. 4112.05 allows an individual to enforce those rights created by R.C. Based upon the foregoing, the Court concludes that if 4112.02 administratively rather than faced with the issue before this Court, the Ohio Supreme judicially by filing a charge with Court would conclude that a claimant who has previously the OCRC. Each of these avenues filed a claim with the OCRC for purposes of meeting of relief provides that it is exclusive the requirements of the ADEA, is not precluded from and, that once an action is instituted filing an age discrimination action under Ohio Rev.Code § thereunder, a plaintiff is barred from 4101.17. 1 Based upon the foregoing, the Court concludes bringing an action under either of that Defendants Motion to Dismiss Count III of Plaintiffs the other two provisions. Thus, Ohios Amended Complaint must be and hereby is overruled in its statutory scheme requires an election entirety. from among these remedies. C. Defendants Motion for Preliminary Injunction orMorris v. Kaiser Engineers, Inc., 14 Ohio St.3d 45, 46, Summary Judgment (Doc. ## 19)471 N.E.2d 471, 473 (Ohio 1984). Defendant contends thatwhen the EEOC referred Plaintiffs charge to the OCRC, said Finally, the Court will consider Defendants Motion forreferral constituted a filing under Ohio Rev.Code § 4112.05. Preliminary Injunction or Summary Judgment (Doc. # 19). InIn other words, Defendant asserts that Plaintiff elected to seek said motion, Defendant asserts that “[i]n return for valuablean administrative remedy under Ohio Rev.Code § 4112.05, consideration, Plaintiff knowingly and voluntarily executedand thus, is precluded from seeking a judicial remedy under a contract waiving any and all claims he might have against4101.17. The key issue with regard to this motion is whether the Defendant arising out of his employment.” (Doc. # 19).or not a charge filed with the OCRC solely for purposes of Defendant contends that “there is no genuine issue of materialmeeting the requirements of § 14 of the ADEA, precludes a fact and DP & L [therefore] is entitled to enforcement of theplaintiff from subsequently seeking a judicial remedy under agreement as a matter of law.” (Doc. # 19, at 4, n. 2). ForOhio Rev.Code § 4101.17. the reasons briefly set forth below, this Court concludes that genuine issues of material fact do exist as to the validity of theWhile the Ohio Supreme Court has not been faced with the agreement, and thus, Defendant is not entitled to enforcementsituation in which a plaintiff first filed with the OCRC (forpurposes of meeting the requirements of the ADEA) and then of the agreement as a matter of law. 2filed suit under § 4101.17 of the Ohio Revised Code, the 1. The Applicable Law © 2012 Thomson Reuters. No claim to original U.S. Government Works. 4
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693Rule 56 of the Federal Rules of Civil Procedure governs the In determining whether or not the waiver executed by thedisposition of motions for summary judgment. Rule 56(c) Plaintiff in this case was in fact valid, the Court must considerstates in pertinent part: three issues. First, the Court must examine whether or not the alleged waiver was “supported by adequate consideration.” The [summary] judgment sought Runyan v. NCR Corp., 573 F.Supp. 1454, 1459 (S.D.Ohio shall be rendered forthwith if the 1983) (Runyan I), affd, 787 F.2d 1039 (6th Cir.1986), pleadings, depositions, answers to cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d interrogatories, and admissions on file, 114 (1986). Second, the Court must consider whether or together with the affidavits, if any, not the waiver was “knowingly” executed by the Plaintiff. show that there is no genuine issue Runyan v. National Cash Register Corp., 787 F.2d 1039, as to any material fact and that the 1044 (6th Cir.1986) (Runyan II) cert. denied, 479 U.S. 850, moving party is entitled to a judgment 107 S.Ct. 178, 93 L.Ed.2d 114 (1986). The Sixth Circuit as a matter of law. simply does not wish those who have “little education and little understanding of their legal rights” to be taken advantageThe United States Supreme Court has concluded that “the of by a more sophisticated employer. Id. Third, the Courtplain language of Rule 56(c) mandates the entry of summary must consider whether or not the waiver executed by Plaintiffjudgment, after adequate time for discovery and upon motion, was deliberately/voluntarily executed by the Plaintiff. Id. Theagainst a party who fails to make a showing sufficient to Sixth Circuit will “not allow employers to compromise theestablish the existence of an element essential to that partys underlying policies of the ADEA by taking advantage of acase, and on which that party will bear the burden of proof at superior bargaining position or by overreaching.” Id. at 1044–trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 45. In other words, a waiver executed under duress is not2548, 2552, 91 L.Ed.2d 265 (1986). Thus, in the case at bar, valid.this Court must determine whether genuine issues of materialfact exist as to the validity of the agreement allegedly entered [4] The Court will first consider the question of whetherinto between Plaintiff and Defendant. Plaintiffs waiver “is supported by adequate consideration.” Runyan I, 573 F.Supp. at 1459. In Runyan I, this Court2. A Brief Overview of Facts concluded that in determining the adequacy of consideration,Defendants Motion for Summary Judgment is based upon the Court must consider whether the employee “receivedthe existence and validity of a waiver executed by Plaintiff. something to which he did not already have an absoluteThere appears to be no dispute between the parties with regard right.” Id. at 1460. Under the terms of the waiver executed byto certain facts related to the circumstances surrounding the Plaintiff, Plaintiff would serve as a consultant to Defendantexecution of said waiver. On October 11, 1985, Plaintiff, an for a period of five months (Doc. # 19, Pitts deposition,employee of DP & L, was informed of his termination by Exh. 6). During that period, Plaintiff would receive paymentshis *532 superior, Willie Hall (Doc. # 19, at 2; Doc. # 20, of $3,054.09 and the Defendant would continue to provideat 1). During his termination interview, Plaintiff was given a Plaintiff with health and life insurance. (Doc. # 19, Pittscopy of the alleged waiver (Doc. # 19, at 2; Doc. # 20, at 2). deposition, Exh. 6). The agreement specifically stated thatPlaintiffs termination occurred on a Friday and he was given “[i]n consideration for the payments to you mentioned above,at least until the following Monday (October 14, 1985) to this letter agreement will also constitute a complete waiverreturn the waiver to Mr. Hall (Doc. # 19, at 3; Doc. # 20, at 2). and release of any and all claims of whatever nature youSubsequently, Plaintiff took the waiver home, discussed its might have against the Company arising directly or indirectlyterms with his wife, and signed it (Doc. # 19, at 3; Doc. # 20, from your employment as Supervisor.” (Doc. ## 19, Pittsat 3). On October 12, 1985, Plaintiff placed the signed waiver deposition, Exh. 6). In this case, the Plaintiff clearly receivedon Mr. Halls desk (Doc. # 19, at 3; Doc. # 20, at 3). Over something to which “he did not already have an absolutethe next five months, Plaintiff accepted the funds provided for right.” Id. In the absence of the agreement signed by Plaintiff,under the waiver (Doc. # 19, at 3; Doc. # 20, at 3). Plaintiff would not have had the right to employment as a consultant or to the payments and fringe benefits which3. The Validity of Plaintiffs Waiver accompanied said employment. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 5
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693 business compulsion. See Andres v. City of Perrysburg, 47 [5] The Court will next consider whether the Plaintiff Ohio App.3d 51, 546 N.E.2d 1377; Mastran Associates v.knowingly executed the waiver agreement. In considering State, slip op., 1987 WL 9489 (Ohio Ct.App. Mar. 31, 1987)whether the Plaintiff knowingly waived his rights under the (LEXIS; States library; Ohio file); Mancino v. Friedman, 69ADEA, the Court finds several factors to be important. First, Ohio App.2d 30, 429 N.E.2d 1181, 1186 (Ohio Ct.App.1980).the Court notes that at the time Plaintiff executed his waiver, “[T]he defense of economic duress, or business compulsion,a “bona fide factual dispute” existed between Plaintiff and arises where one individual, acting upon anothers fear ofDefendant as to whether Defendant had violated the ADEA. impending financial injury, unlawfully coerces the latterRunyan II, 787 F.2d at 1044. Plaintiff admits that at the to perform an act under circumstances which prevent histime that he executed the waiver, he believed that he had exercise of free will.” Mancino, 69 Ohio App.2d at 36, 429been terminated because of his age, and he knew that such a N.E.2d at 1186 (emphasis added). Thus, in the case at bar,termination was illegal (Doc. # 19, Pitts deposition, at 56– the Court must consider whether there is a genuine issue57). In other words, Plaintiff understood that he did have of material fact as to the following issues. First, whetherthe right to sue Defendant. Second, the Court notes that in executing the waiver, Plaintiff was acting under fear ofPlaintiff understood that in executing the waiver, *533 he impending financial injury. Id. at 37, 429 N.E.2d at 1186.was waiving his right to sue the Defendant. Plaintiff admits Second, whether the Defendant “effectively prevented ...that he knew that the agreement he signed “constituted a [plaintiff] from exercising his free will in this matter.”waiver of ... [his] claims against the company, including Id. Third, whether the method of coercion utilized by theany age claim.” (Doc. # 19, Pitts deposition, at 73). This Defendant was unlawful. Id.admission is corroborated by the fact that the language ofthe agreement signed by Plaintiff was clear. 3 Plaintiffs Plaintiff asserts that he “was coerced and placed underadmission is further corroborated by the fact that Plaintiff is economic duress by Defendant and by the job consultinga well-educated person who is experienced in the ways of the firm it hired.” (Doc. # 20, at 7). Plaintiffs claims ofbusiness world. (Doc. # 19, Pitts deposition, at 31–36; Doc. duress are based upon the comments of Mr. Hall during# 19, Pitts deposition, Exh. 4). Based upon the foregoing, the Plaintiffs termination interview of October 11, 1985, andCourt concludes that there is no genuine issue of material the information provided by two job placement consultantsfact as to the fact that Plaintiff knew that he had a claim for from Challenger, Gray and Christmas, who spoke withage discrimination against Defendant and that he knew that the Plaintiff immediately after his termination interview.in executing the agreement provided by Defendant, he was Plaintiff contends that Mr. Hall placed Plaintiff under duresswaiving said claim. by informing Plaintiff that if he did not sign the waiver agreement, he would be terminated on October 14, 1985,Finally, the Court must consider whether or not Plaintiff and would receive no further compensation. Plaintiff furthervoluntarily executed the waiver. As noted by the Sixth Circuit asserts that the job placement consultants were acting as the“[i]n determining whether an ADEA settlement and release agents of Defendant when they informed the Plaintiff thatis valid, a court should apply the principles expressed by he should not call an attorney or initiate a law suit againstJustice Frankfurter that encourage ‘amicable settlement of Defendant.honest differences ... where overreaching or exploitation isnot inherent in the situation.’ ” Runyan II, 787 F.2d at 1045. *534 [6] The Court first notes that it cannot concludeIn determining whether or not Plaintiff voluntarily waived that the statements of Mr. Hall, the Plaintiffs superior, arehis rights under the ADEA, this Court must apply ordinary sufficient to support the defense of economic duress. Ascontract principles. Id. at 1044 n. 10. previously discussed, one of the elements of economic duress is unlawful coercion.When considering the validity of a contract, the Ohio courtshave long recognized the defense of duress. The Ohio “Duress involves illegality, andSupreme Court has recognized that “[t]he real and ultimate implies that a person has beenfact to be determined in every case is whether the party unlawfully constrained by another toaffected really had a choice; whether he had his freedom perform an act under circumstancesof exercising his will.” Tallmadge v. Robinson, 158 Ohio which prevent the exercise of free will,St. 333, 340, 109 N.E.2d 496, 500 (1952). Several appellate and it can never constitute fraud orcourts have recognized the defense of economic duress, or duress to do as and what a person © 2012 Thomson Reuters. No claim to original U.S. Government Works. 6
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,693 has the legal right to do, whatever Based upon the evidence on the record, the Plaintiff may the pecuniary consequences may be to well have executed the waiver because he feared impending those with whom he deals.” financial injury, i.e., the inability to secure another job. Further, it can be reasonably inferred that the DefendantId. at 36, 429 N.E.2d at 1186 (quoting Bartlett v. Richardson effectively prevented the Plaintiff from exercising his freeCo., 27 Ohio App. 263, 270–271, 161 N.E. 403 (1927)). will. In other words, it may reasonably be inferred thatEven assuming arguendo, that Mr. Hall did tell Plaintiff Plaintiff feared that if he took legal action, Defendant wouldthat if he failed to sign the waiver agreement, he would retaliate and prevent Plaintiff from getting another job.receive no additional compensation from the Defendant, Finally, if the Defendant was indeed threatening to retaliatePlaintiffs claim of economic duress is without merit for Mr. against Plaintiff for Plaintiffs exercise of his rights underHalls statement was not unlawful. Defendant was simply notobligated to provide Plaintiff with compensation following the ADEA, Defendants threat was indeed unlawful. 4 Ithis termination. can reasonably be inferred from the statements of the job placement consultants that any attempt *535 by Plaintiff to [7] While the Court concludes that the statements of Mr. enforce his rights would result in attempts by Defendant toHall, the Plaintiffs superior, are not sufficient to support a sabotage future employment. 5defense of economic duress, the Court concludes that thereare genuine issues of material fact as to whether or not Based upon the foregoing, the Court concludes that genuinethe statements of the job placement consultants and/or the issues of material fact do exist as to whether or not Plaintiffinformation provided by said consultants are sufficient to executed the waiver agreement while under economic duress.support a defense of economic duress. There is no dispute Accordingly, as this Court cannot conclude that Plaintiffsas to the fact that the services of the job consultants were waiver was valid as a matter of law, the Court concludesprovided by Defendant. This Court concludes that a genuine that Defendants Motion for Summary Judgment must beissue of material fact does exist as to whether or not the overruled in its entirety. 6consultants were acting as the agents of Defendant. ThePlaintiff testified that when he brought up the issue of age In conclusion, this Court finds that Plaintiffs claims of agediscrimination at his initial meeting with the job placement discrimination cannot be considered until the validity ofconsultants, the consultants told him “You should do nothing. the waiver signed by Plaintiff has been determined. As thisIf you do anything, youll never get a job.” (Doc. # 19, Court has determined that Plaintiff knowingly waived hisPitts deposition, at 56). Plaintiff further testified that the job right to sue Defendant as a matter of law, the only issueplacement consultants stated “Dont consult an attorney. Just remaining before the Court regarding Plaintiffs waiver is—because if you do, you are dead.” (Doc. ### 19, Pitts the issue of duress. The Court had previously set this actiondeposition, at 57). It is Plaintiffs contention that when he for trial on January 23, 1989. Trial will indeed begin onmentioned age discrimination, the job placement consultants that date, but, solely on the issue of duress. If the jurysaid “Dont because if—if we get you a job and they consult concludes that Plaintiff acted under economic duress inDayton Power & Light, you are a non-entity.” (Doc. # 19, Pitts executing the waiver, trial will be set for Plaintiffs claims ofdeposition, at 57). With regard to the waiver itself, Plaintiff age discrimination. If, on the other hand, the jury concludestestified that the job placement consultants indicated to him that Plaintiff did not act under economic duress in executingthat “if you [Plaintiff] dont sign it, you are not going to get the waiver, this action will be terminated upon the docketa job.” (Doc. ## 19, Pitts deposition, at 62). Plaintiff asserts records of the United States District Court for the Southernthat he feared that if he did not sign the waiver, he would not District of Ohio, Western Division.be able to obtain employment with another firm. (Doc. # 19,Pitts deposition, at 63). The point is, that taken as a whole, Parallel Citationsthe statements which Plaintiff attributes to the job placement 53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. Pconsultants could be construed as a veiled threat of retaliation. 40,693Footnotes © 2012 Thomson Reuters. No claim to original U.S. Government Works. 7
    • Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (1989)53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P 40,6931 The Court finds support for its conclusion in the recent case of Lafferty v. Coopers & Lybrand, 841 F.2d 1126 (6th Cir.1988) (table) (LEXIS, Genfed library, Courts file). In Lafferty, the Sixth Circuit concluded that “[t]here is no indication that Ohio intended to bar a plaintiff who went to the EEOC, seeking no remedy from the Ohio Civil Rights Commission, from pursuing a claim under section 4101.17 where filing with the EEOC is required for the filing of a federal claim.” The court specifically noted that such an “interpretation would effectively mean that Ohio barred federal court pendent jurisdiction of claims under section 4101.17.” The Sixth Circuit simply could not believe that such was “the result envisioned by the Ohio legislature.”2 The Court notes that the Defendant moved in the alternative for a preliminary injunction enjoining Plaintiff from pursuing his claims against Defendant until the validity of the parties agreement may be finally adjudged (Doc. # 19, at 1). As the Court this day has determined that it will stay trial on the underlying age discrimination claim pending trial on the question of the validity of the parties agreement/release, the Court concludes that Defendants Motion for a Preliminary Injunction must be and hereby is deemed moot.3 The agreement signed by Plaintiff states in pertinent part: In consideration for the payments to you mentioned above, this letter agreement will also constitute a complete waiver and release of any and all claims of whatever nature you might have against the Company arising directly or indirectly from your employment as Supervisor. (Doc. # 19, Pitts deposition, Exh. 6).4 Section 623(d) of Title 29 of the United States Code states: It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.5 The Court notes that the job placement consultants allegedly warned Plaintiff that even the mere act of consulting an attorney would harm his future employment prospects. (Doc. # 19, Pitts deposition, at 57). This Court questions how, in the absence of some retaliatory action by the Defendant, the mere act of consulting an attorney could possibly harm Plaintiffs chances of obtaining new employment. The only way that a potential employer could discover such a consultation (or for that matter any legal action taken by Plaintiff against Defendant) would be if Defendant told said potential employer of Plaintiffs actions.6 Defendant asserts that even if the Plaintiff “could prove he signed the release under duress, his subsequent acceptance of the benefits of the agreement without objection constituted a ratification of the release.” (Doc. # 19, at 13 n. 4). The Court finds this argument to be without merit. There is no indication that if Plaintiff was in fact under duress when he signed the waiver, he was ever released from said duress. See generally Doolittle & Chamberlain v. McCullough, 7 Ohio St. 299, 307 (1857). There is no indication that if Plaintiff feared retaliatory action by Defendant that said fear was ever removed.End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 8