RESPONSE TO AUGUST 29, 2012     EQUAL EMPLOYMENT OPPORTUNITY COMMISSION            LETTER FROM WILMA L. JAVEY - -        R...
Complainant/Employee:           Vogel Denise Newsome (“Newsome”)                                Post Office Box 14731     ...
Ohio Civil Rights Commission pursuant to 29 § 1601.13 and other statutes/laws governing said matters. Forinstance 29 § 160...
A copy of which may also be obtained from the Internet at:     http://www.slideshare.net/VogelDenise/062112-response-to-ee...
Alsup vs. International Union of Bricklayers, 679 F.Supp. 716 (N.D. Ohio 1987) -         [11] In “deferral states” such as...
administrative remedies by filing a signed complaint with the . . . State Civil              Rights Commission. Age Discri...
proceedings were commenced with the OCRC. Age Discrimination in                Employment Act of 1967, §§ 14, 14(b), 29 U....
Staffing/Messina Management Systems) has been DEFERRED to the Ohio Civil Rights             Commission as MANDATORILY requ...
EXHIBIT "A"
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208                                         ...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208       Under Ohio law, general six-year s...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208       To show respondeat superior liabil...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208             Mental Suffering and Emotion...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208            section 630(a) of this title ...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208filed a second charge with the OCRC for r...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208The plaintiff in Bellian brought an age-b...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208Talley v. Bravo Pitino Restaurant, Ltd., ...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208action. Because a prima facie case for ag...
Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208Following the above standards, and even a...
Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl...
Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl...
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
09/28/12 EEOC Response & Exhibits
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09/28/12 EEOC Response & Exhibits

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09/28/12 EEOC Response & Exhibits

  1. 1. 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
  2. 2. 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
  3. 3. 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
  4. 4. 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
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8. 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
  9. 9. EXHIBIT "A"
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. 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
  15. 15. 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
  16. 16. 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
  17. 17. 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
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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

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