09/28/12 EEOC Response & Exhibits

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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, 2012

SUBMITTED 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 43215

EEOC 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 RIGHTS COMMISSION 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.

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Complainant/Employee: Vogel Denise Newsome (“Newsome”)

Post Office Box 14731 Cincinnati, Ohio 45250

Phone: (513) 680-2922

Respondent(s)/ Employer(s):

The Garretson Firm Resolution Group, Inc.

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 TO

THE AUGUST 29, 2012 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LETTER FROM WILMA

L. 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” is

submitted 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 the

MANDATORY Deferral of this instant Equal Employment Opportunity Commission Complaint/Charge to the

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Ohio Civil Rights Commission pursuant to 29 § 1601.13 and other statutes/laws governing said matters. For

instance 29 § 1604.8 addresses how matters are to be handled that involves claims falling within the jurisdiction of

the 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 intent

FAILED to DEFER the Complaint(s) to the Ohio Civil Rights Commission. As a matter of FEDERAL

Statutes/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 following

FACTS remain UNDISPUTED and, therefore, sustains that yours and the EEOC’s actions are ARBITRARY

and/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”)

http://www.slideshare.net/VogelDenise/29-cfr-16048-processingcompltateagency-highlighted

http://www.slideshare.net/VogelDenise/29-cfr-16048-processingcompltateagency-highlighted

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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):

http://www.slideshare.net/VogelDenise/062112-response-to-eeoc-061412-letter

http://www.slideshare.net/VogelDenise/062112-usps-proof-of-mailing-receipt-hilda-solis-g-michael-payton

http://www.slideshare.net/VogelDenise/062112-usps-proof-of-mailing-receipt-hilda-solis-g-michael-payton

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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 claimant's 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 full

herein. In the May 9, 2012 correspondence from the Ohio Civil Rights Commission’s

Sandra R. Aukeman, it ERRONOUSLY stated that Newsome’s Complaint/Charge was

UNTIMELY 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 full

herein. The Supreme Court of the United States’ decision in Oscar Mayer & Co. vs. Joseph

Evans, 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

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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 respondent's 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 employee's 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

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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 Plaintiff's 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:


https://secure.filesanywhere.com/fs/v.aspx?v=8a70678e5d5f70afac9c

j) 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



https://secure.filesanywhere.com/fs/v.aspx?v=8a70678e5d5f70afac9c

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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 Commission's 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 Solis

provide her with a “WRITTEN RESPONSE” by TUESDAY, October 16, 2012, to this instant submittal and

advises that she does NOT waive any rights to have this matter DEFERRED to the Ohio Civil Rights Commission

and DEMANDS that the COMMISSIONER CHARGE issue in this matter.

http://www.slideshare.net/VogelDenise/commissioner-charge-systematic-task-force-reporteeoc-highlighted

http://www.slideshare.net/VogelDenise/commissioner-charge-systematic-task-force-reporteeoc-highlighted

EXHIBIT "A"

Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)68 Empl. Prac. Dec. P 44,208

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

Employee brought action against employer for agediscrimination under Age Discrimination in Employment Act(ADEA) and Ohio law, and against hospital and individualsfor intentional infliction of emotional distress under Ohiolaw. On motion by hospital and individuals for summaryjudgment, the District Court, Economus, J., held that: (1)90–day limitations period applied to all ADEA actions filedafter enactment of Civil Rights Act of 1991; (2) employeeexhausted her administrative remedies, and thus fulfillednecessary jurisdictional prerequisites for ADEA retaliationclaim, where she filed retaliation charge with Ohio CivilRights Commission (OCRC) and waited 60 days before filingsuit in federal court; (3) 180–day statute of limitations appliedto Ohio age discrimination claim; (4) even if ADEA claimwere not timebarred, employee failed to establish primafacie hostile environment claim, since no respondeat superiorliability existed on part of employer; (5) even if ADEAclaim were not timebarred, employee failed to establish primafacie hostile environment claim, since no materially adversechange in terms or conditions of employee's employmentoccurred; and (6) evidence was insufficient to support claimthat supervisors engaged in extreme and outrageous conductthat would support finding of liability for intentional inflictionof emotional distress.

Motion granted.

West Headnotes (19)

[1] Civil RightsTime for Proceedings; Limitations

Ninety-day limitations period applies to allADEA actions filed after enactment of CivilRights Act of 1991. Age Discrimination inEmployment Act of 1967, §§ 2 et seq., 7(e), 29U.S.C.A. §§ 621 et seq., 626(e).

2 Cases that cite this headnote

[2] Administrative Law and ProcedureExhaustion of Administrative Remedies

Civil RightsExhaustion of State or Local Remedies

Employee exhausted her administrative remedies,and thus fulfilled necessary jurisdictionalprerequisites for ADEA retaliation claim, whereshe filed retaliation charge with Ohio Civil RightsCommission (OCRC) and waited 60 days beforefiling suit in federal court; employee was notrequired to pursue OCRC claim to its conclusion.Age Discrimination in Employment Act of 1967,§ 14(b), 29 U.S.C.A. § 633(b).

[3] Civil RightsDeferral to State Agencies; Time

Ohio is deferral state within meaning of statutemandating that in deferral states, i.e., states whereestablished agencies are empowered to remedyage discrimination in employment, person maynot bring suit in federal court under ADEAunless person has commenced proceeding withappropriate state agency. Age Discrimination inEmployment Act of 1967, § 14(b), 29 U.S.C.A.§ 633(b).

[4] Civil RightsExistence of Other Remedies; Exclusivity

While it was intent of Congress to encourageresolution of age discrimination disputeson state level through recourse to stateadministrative remedies, Congress also intendedto make remedies of ADEA complementary andsupplementary to state administrative remedies,and not mutually exclusive. Age Discriminationin Employment Act of 1967, § 2 et seq., 29U.S.C.A. § 621 et seq.

[5] Civil RightsTime for Proceedings; Limitations

EXHIBIT "B"



Under Ohio law, general six-year statute oflimitations applies to gender discriminationclaims, since no provision in chapter governingCivil Rights Commission, other than provisionauthorizing civil action for damages for violationsof chapter, creates civil liability for gender-basedclaims. Ohio R.C. §§ 4112.01 et seq., 4112.99.

[6] Civil RightsEmployment Practices

StatutesGeneral and Special Statutes

Under Ohio law, 180–day statute of limitationsapplied to age discrimination claim, since specificprovision in chapter governing Civil RightsCommission set forth such limitations period,and prevailed over conflicting provision settingforth general six-year statute of limitations forviolations of chapter. Ohio R.C. §§ 4112.01 etseq., 4112.02(N), 4112.99.


[7] Civil RightsHostile Environment; Severity,

Pervasiveness, and Frequency

Hostile work environment requires existenceof severe or pervasive and unwelcomeverbal or physical harassment because ofemployee's membership in protected class. AgeDiscrimination in Employment Act of 1967, § 2 etseq., 29 U.S.C.A. § 621 et seq.; Civil Rights Actof 1964, § 701 et seq., as amended, 42 U.S.C.A.§ 2000e et seq.

[8] Civil RightsHarassment; Work Environment

No reasons exists to differentiate between agediscrimination claimants and members of otherprotected groups for purposes of bringing hostilework environment claim, since there is virtuallylittle or no difference between ADEA and TitleVII. Age Discrimination in Employment Act of1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; CivilRights Act of 1964, § 701 et seq., as amended, 42U.S.C.A. § 2000e et seq.


Hostile work environment allegations are equallycognizable in age discrimination context as wellas in situations involving title 7 claimants. AgeDiscrimination in Employment Act of 1967, § 2 etseq., 29 U.S.C.A. § 621 et seq.; Civil Rights Actof 1964, § 701 et seq., as amended, 42 U.S.C.A.§ 2000e et seq.


Hostile work environment theory requires thatemployee show that: (1) he or she was memberof protected class; (2) he or she was subjectto unwelcome harassment; (3) harassment wasprompted solely because of employee's age;(4) harassment affected term, condition, orprivilege of employment; and (5) existence ofrespondeat superior liability. Age Discriminationin Employment Act of 1967, § 2 et seq., 29U.S.C.A. § 621 et seq.; Civil Rights Act of 1964,§ 701 et seq., as amended, 42 U.S.C.A. § 2000eet seq.

[11] Civil RightsVicarious Liability; Respondeat Superior

No respondeat superior liability existed onpart of employer in connection with allegedharassment based on age, and employee thusfailed to establish fifth element of ADEA hostileenvironment claim; employee did not complainabout alleged harassment and, when co-workerbrought similar concerns to employer's attention,offending supervisor was sent to managementsensitivity training seminars. Age Discriminationin Employment Act of 1967, § 2 et seq., 29U.S.C.A. § 621 et seq.


[12] Civil RightsVicarious Liability; Respondeat Superior



To show respondeat superior liability in co-worker discrimination cases, employee mustprove that employer, through its agents orsupervisory personnel, knew or should haveknown of charged harassment and failed toimplement prompt and appropriate correctiveaction. Age Discrimination in Employment Act of1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; CivilRights Act of 1964, § 701 et seq., as amended, 42U.S.C.A. § 2000e et seq.

[13] Civil RightsPractices Prohibited or Required in General;

Elements

Elements of prima facie case of retaliation are: (1)that employee engaged in protected activity; (2)that exercise of employee's protected rights wasknown to employer; (3) that employer thereaftertook employment action adverse to employee;and (4) that there was causal connection betweenprotected activity and adverse employmentaction. Age Discrimination in Employment Actof 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.

[14] Civil RightsParticular Cases

Civil RightsDiscipline

No materially adverse change in terms orconditions of employee's employment occurred,and employee thus failed to establish thirdelement of ADEA retaliation claim; employeecould not recall if her discipline was result ofher mistakes, employee could not recall jokesabout old persons allegedly made by co-workers,and employee was not demoted, threatened withdismissal, or forced to take cut in pay. AgeDiscrimination in Employment Act of 1967, § 2et seq., 29 U.S.C.A. § 621 et seq.

[15] Civil RightsAdverse Actions in General

Determining whether there was materialadverse change in terms or conditions ofemployment, for purposes of determining

whether employee has established primafacie case of retaliation, involved objectivedetermination of whether conduct of employee'ssupervisor and coworkers created such difficultor unpleasant working conditions that reasonableperson in employee's shoes could not toleratethem. Age Discrimination in Employment Act of1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.

[16] DamagesLabor and Employment

Under Ohio law, negligent infliction of emotionaldistress is not recognized in employment context.


[17] DamagesElements in General

Under Ohio law, to support claim for tort ofintentional infliction of emotional distress, fourelements must be proved: (1) that actor eitherintended to cause emotional distress or knewor should have known that actions taken wouldresult in serious emotional distress plaintiff; (2)that actor's conduct was extreme and outrageous,that it went beyond all possible bounds ofdecency, and that it can be considered as utterlyintolerable in civilized community; (3) thatactor's actions were proximate cause of plaintiff'spsychic injury; and (4) that mental anguishsuffered by plaintiff is serious and of nature thatno reasonable person could be expected to endureit.


[18] DamagesNature of Injury or Threat

DamagesHumiliation, Insults, and Indignities

Under Ohio law, liability for intentional inflictionof emotional distress does not extend to mereinsults, indignities, threats, annoyances, pettyoppressions, or other trivialities.

[19] Damages



Mental Suffering and Emotional Distress

Under Ohio law, assuming that claim forintentional infliction of emotional distress isrecognized in employment context, evidence wasinsufficient to support employee's claim thatsupervisors engaged in extreme and outrageousconduct that would support finding of liability;although employee complained of commentsrelated to her age, exclusion from office parties,increase in work load, cursing by supervisor,and dumping of her birthday cake into trash,employee did not go to any medical providerother than for annual check-up, and employee didnot miss any work because of stress.

Attorneys and Law Firms

*1188 Edward L. Gilbert, Law Offices Of Edward L.Gilbert, Akron, OH, for Ruth Ann Dunn.

Joel R. Hlavaty, Richard V. Whelan, Jr., Thompson, Hine &Flory, Cleveland, OH, for Medina General Hospital, DarlaKermendy, Kenneth Milligan.

Stephanie Dutchess Trudeau, Ulmer & Berne, Cleveland,OH, for Stephanie Dutchess Trudeau.

Opinion

MEMORANDUM OPINION

ECONOMUS, District Judge.

This matter is before the Court on motion by the Defendantsfor summary judgment. Having reviewed the record andconsidered the facts in a light most favorable to the non-movant Plaintiff, the Court will grant summary judgment.

Plaintiff, Ruth Dunn, has been employed by theMedina General Hospital (Hospital) as a commercialbiller since 1969. On June 25, 1992, Ms. Dunn fileda charge of age discrimination with the Ohio CivilRights Commission (OCRC) and the Equal EmploymentOpportunity Commission (EEOC). In November of 1992,the OCRC found that it was not probable that the Hospitalhad discriminated against her and dismissed the charge. OnFebruary 24, 1993, the EEOC also dismissed the charge and

informed Ms. Dunn that she had ninety days within which tofile an action in federal court.

In April, 1993, Ms. Dunn filed a second charge with theOCRC and the EEOC alleging retaliation by the Hospital.The OCRC found probable cause that the Hospital retaliatedagainst her.

On November 15, 1994, Ms. Dunn filed this actionalleging causes of action under the Age Discrimination inEmployment Act (ADEA), 42 U.S.C. § 1983, as well as agediscrimination and intentional infliction of emotional distressclaims under Ohio law. Some of these claims have beendismissed and thus the claims that are before the Court at thistime are the following: Count One (ADEA as to the Hospital),Count Two (alleged violation by the Hospital of Ohio RevisedCode §§ 4112.02 and 4112.99), and Count Three (intentional

infliction of emotional distress as to all defendants). 1

In her complaint and affidavit, Ms. Dunn claims sheexperienced numerous actions and comments related directlyto her age around the time the new patient accounts manager,Defendant Darla Kennedy, began working at the Hospital.These included the older workers in the department beingexcluded from office parties, additional duties assigned toolder workers which were not assigned to the youngerworkers, auditing of the older employees' work by theyounger workers, and other preferential treatment of theyounger workers. In essence she claims that her workingenvironment consisted of preferential treatment of youngerworkers and demeaning treatment of older workers.

*1189 The Defendant has moved for summary judgmenton numerous grounds which the Court will address as raisedwithin the motion.

I. Plaintiff's First EEOC Charge is Time–Barred

The Hospital first argues that Ms. Dunn's ADEA claim foractions complained of in her first complaint to the EEOC istime-barred. The Hospital cites to 29 U.S.C. § 626(e), whichprovides as follows:

If a charge filed with the Commissionunder this chapter is dismissed orthe proceedings of the Commissionare otherwise terminated by theCommission, the Commission shallnotify the person aggrieved. A civilaction may be brought under thissection by a person defined in



section 630(a) of this title against therespondent in the charge within 90days after the date of the receipt ofsuch notice.

On February 24, 1993, the EEOC notified Ms. Dunn byletter of her right to sue. The letter contained the followinglanguage:

A lawsuit under the AgeDiscrimination in Employment Act(“ADEA”) ordinarily must be filedwithin two years of the date ofdiscrimination alleged in the charge.On November 21, 1991, the ADEAwas amended to eliminate this twoyear limit. An ADEA lawsuit may nowbe filed any time from 60 days after acharge is filed to 90 days after receiptof notice that EEOC has completedaction on the charge.

Because Ms. Dunn did not file her complaint until November15, 1994, the Hospital argues that the claim is now time-barred by § 626(e).

Plaintiff argues that this claim is governed by the statute oflimitations in effect under the ADEA prior to the enactmentof the Civil Rights Act of 1991. Under the rules in placeprior to the Civil Rights Act of 1991, a plaintiff in an agediscrimination case generally had two years after the actionaccrued to file a claim, and three years if the claim alleged a“willful violation.” Plaintiff further argues that the languageof the statute is permissive and provides merely that an ADEAsuit could, but did not have to be filed within 90 days.The word “may” in § 626(e), Plaintiff contends, indicatesthe intent of Congress to supplement rather than replace thethree-year limitations period. Thus, as long as her suit wasfiled within the three-year statute of limitations for willfulviolations, her ADEA action is not time-barred. Plaintiffrelies on Simmons v. Al Smith Buick Co., Inc., 841 F.Supp.168 (E.D.N.C.1993) as authority that the 90–day limit was notintended to be the only limit in ADEA cases and to replacethe previous two and three year rules, and urges this Court toadopt its reasoning.

The issue is therefore whether the amended statute oflimitations period applies to all civil actions filed after theenactment of the 1991 Civil Rights Act. The Sixth Circuithas not addressed this issue but a review of the law of thecircuits which have considered it will serve as a guide to this

Court. The Second, Fifth, and Eighth Circuits have concludedthat § 626(e) applies to actions such as this one. See Vernonv. Cassadaga Valley Cent. School Dist., 49 F.3d 886, 889–91 (2d Cir.1995); St. Louis v. Texas Worker's CompensationCommission, 65 F.3d 43, 45–46 (5th Cir.1995); Garfield v.J.C. Nichols Real Estate, 57 F.3d 662, 664–65 (8th Cir.), cert.denied, 516 U.S. 944, 116 S.Ct. 380, 133 L.Ed.2d 303 (1995).

[1] Each of the above cases held that the Civil RightsAct of 1991 amended 29 U.S.C. § 626(e) by eliminatingthe two or three year limitations period and that § 626(e)now provides the exclusive limitations period for claimsbrought under the ADEA. Both the language and legislativehistory of § 626(e) support this conclusion. The statute statesclearly that a complainant may file suit within ninety daysafter the date of the receipt of a right-to-sue letter fromthe EEOC. The legislative history indicates that the two orthree year statute of limitations incorporated into the former§ 626(e) does not survive the passage of the 1991 Act. Inthe 1991 Act, Congress deleted from the former § 626(e)the express reference to § 255 of the Portal–to–Portal PayAct which provided for the two or three year limitationsperiod. This Court agrees with the interpretation of thelegislative history of § 626(e) set forth in *1190 McCrayv. Corry Mfg. Co., 872 F.Supp. 209 (W.D.Pa.1994), aff'd 61F.3d 224 (3rd Cir.1995) where the court concluded that thelegislative history “demonstrates that the purpose of the 1991Amendment to § 626(e) was to create a ninety-day windowwithin which plaintiffs must file suit under the ADEA or losetheir right to do so.”

The analysis of the Vernon, St. Louis, and Garfield decisionsis persuasive. Further, the Simmons case relied upon byPlaintiff was accurately criticized in McCray and that caseprovides a helpful analysis of this issue. The language of §626(e), the legislative history, and the weight of authorityamong the courts all support the conclusion that the statute oflimitations of § 626(e) is applicable to Plaintiff's first ADEAclaim. Ms. Dunn was required to file her action within ninetydays of having received the February 23, 1993 right-to-suenotice. She did not do so. Consequently, this claim is time-barred.

II. Exhaustion of Administrative Remedies

[2] As to Ms. Dunn's second EEOC charge for retaliation,the Hospital contends that the claim must be dismissedbecause she has failed to exhaust her administrativeremedies. Upon the EEOC's denial of her first claim of agediscrimination, Ms. Dunn returned to work. She subsequently



filed a second charge with the OCRC for retaliation. Inaccordance with the relevant filing guidelines, she filed herlawsuit more than sixty days later. During this interim period,she did not pursue her claim with the OCRC and did notrespond to its requests for interrogatories or interviews. TheOCRC therefore recommended dismissal of her charge dueto lack of cooperation with the discovery process. Defendantsequate this failure to cooperate with a failure to exhaustadministrative remedies, thereby mandating dismissal of theclaim.

[3] The Supreme Court has held that 29 U.S.C. § 633(b)mandates that in states where established agencies areempowered to remedy age discrimination in employment(deferral states), a person may not bring a suit in federal courtunder the ADEA unless she has commenced a proceedingwith 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). The Ohio Civil Rights Commission(OCRC) is Ohio's agency which is empowered to remedy agediscrimination in employment. Ohio is a deferral state withinthe meaning of § 14(b) of the ADEA. Brownlow v. EdgcombMetals Co., 573 F.Supp. 679, 683 (N.D.Ohio 1983).

[4] While it was the intent of Congress to encouragethe resolution of age discrimination disputes on the statelevel through recourse to state administrative remedies, it isequally clear that Congress intended to make the remediesof the ADEA complementary and supplementary to stateadministrative remedies, and not mutually exclusive. OscarMayer, 441 U.S. at 764, 99 S.Ct. at 2075. Moreover,the holding in Oscar Mayer was that a filing of a stateadministrative complaint after the state statute of limitationsfor that filing had run did not prevent an age discriminationplaintiff from proceeding with a claim under the ADEA,even though the filing had therefore been merely perfunctory.Id. The plaintiff need only wait sixty days before bringingsuit in federal court, even if the filing is merely formal andineffective for state administrative purposes. Id. at 762, 99S.Ct. at 2074–2075.

This reasoning is applicable here. Ms. Dunn “commenced”state proceedings with the appropriate administrative agency,the OCRC. The holding of Oscar Mayer does not requireher to pursue that claim with the administrative agency to itsconclusion. By waiting sixty days before filing her lawsuitin federal court, she has fulfilled the necessary jurisdictionalprerequisites and her second claim for retaliation is nowproperly before this Court.

III. Plaintiff's Ohio Age Claims are Time–Barred

Defendant next claims that Plaintiff's state claims of agediscrimination are time barred because Section 4112.02(N) ofthe Ohio Revised Code provides that any civil action broughtunder § 4112.02 must be instituted within 180 days afterthe alleged unlawful discriminatory practice. Defendants alsocontend that the continuing violations theory *1191 is notapplicable and thus cannot toll the limitations period. Plaintiffargues that the Bellian decision relied upon by Defendantswas overruled by the Ohio Supreme Court in Cosgrove v.Williamsburg of Cincinnati Management Co. Inc., 70 OhioSt.3d 281, 638 N.E.2d 991 (1994).

The Ohio Supreme Court has held that the time periodof limitations of Section 4112.02(N) applies to agediscrimination actions brought under § 4112.99. Bellian v.Bicron Corp., 69 Ohio St.3d 517, 634 N.E.2d 608 (1994)In Bellian, the Ohio Supreme Court held that an agediscrimination claim premised on a violation of § 4112.99had to comply with the 180–day limitations period despite theemployee's assertion that the claim should be governed by thegeneral six-year limitations period. Plaintiff here makes thesame argument in support of the six-year limitations period,citing Cosgrove.

The syllabus by the Court in Cosgrove states that “R.C.4112.99 is a remedial statute, and is thus subject to R.C.2305.07's six-year statute of limitations.” The syllabus inBellian reads: “Any age discrimination claim, premised ona violation described in R.C. Chapter 4112, must complywith the one-hundred-eighty-day statute of limitations periodset forth in former R.C. 4112.02(N).” Justice Alice RobieResnick provides an important distinction in her concurringopinion to Cosgrove to explain the apparent inconsistencybetween the holdings of the Ohio Supreme Court in Bellianand Cosgrove.

The essential distinction between the two cases is that Bellianwas an age discrimination case while Cosgrove was a gender-based discrimination claim. In Bellian the court recognizedthat there may be other provisions in R.C. Chapter 4112 thatpermit aggrieved individuals to enforce specific rights underChapter 4112 by instituting a civil action. To the extent thatother specific provisions set forth a statute of limitations, aconflict could exist between such specific provisions and R.C.4112.99, relative to the applicable statute of limitations. “Insuch an event, pursuant to R.C. 1.51, the specific provision'sstatute of limitations must prevail.” Bellian, 69 Ohio St.3d at519, 634 N.E.2d 608.



The plaintiff in Bellian brought an age-based employmentdiscrimination claim that purported to be based on R.C.4112.99. However, the only provision in R.C. Chapter 4112that recognizes discrimination based on age is R.C. 4112.02.Therefore, the plaintiff must have been referring to theform of age-based discrimination identified in R.C. 4112.02.Cosgrove, 70 Ohio St.3d at 290, 638 N.E.2d 991. R.C.4112.02(N) specifically authorized civil actions for age-basedemployment discrimination claims and contained a 180–daystatute of limitations. Consequently, its statute of limitationsprevailed over that of R.C. 4112.99.

[5] [6] The plaintiff in Cosgrove brought a gender-based employment discrimination claim, also pursuant toR.C. 4112.99. As in Bellian, the only provision in R.C.Chapter 4112 that proscribes gender-based employmentdiscrimination is R.C. 4112.02. Unlike the situation inBellian, however, there is no R.C. Chapter 4112 provision,other than R.C. 4112.99, that creates civil liability for gender-based employment discrimination claims. R.C. 4112.02(N)only authorizes civil actions relative to discrimination on thebasis of age. Thus, there is no specific R.C. Chapter 4112provision which conflicts with R.C. 4112.99. Accordingly,the six-year statute of limitations set forth in R.C. 2305.07and not the 180–day statute of limitations contained inR.C. 4112.02(N) applies to gender discrimination claims.Cosgrove, 70 Ohio St.3d at 291, 638 N.E.2d 991. Thisanalysis governs the situation before this Court. Becausethis is an action alleging age discrimination, the 180–daylimitations period of R.C. 4112.02(N) is applicable to the stateclaims of Ms. Dunn.

Even if the 180–day limitations period is applicable, Plaintiffmaintains that the statute of limitations is tolled under thecontinuing violation theory because the statutory six-monthperiod begins to run anew with each new discriminatory act.

The Court is not aware of any Ohio state courts havingaddressed the question of whether the continuing violationsrationale applies to age-based discrimination claims underR.C. 4112.99 or R.C. 4112.02. Since R.C. 2305 is notapplicable here, any tolling *1192 provision within thatsection cannot be applied either so as to encompass Plaintiff'sclaims within the statutory period.

Plaintiff's administrative claims were filed in June 1992 andApril 1993. Plaintiff alleges that the discriminatory actionsof the Defendants have been continual since June 1, 1991.She filed this cause of action on November 15, 1994. R.C.4112.02(N) reads:

An aggrieved individual may enforcehis rights relative to discrimination ofthe basis of age as provided for in thissection by instituting a civil action,within one hundred eighty days afterthe alleged unlawful discriminatorypractice occurred, in any court withjurisdiction for any legal or equitablerelief that will effectuate his rights.

When Plaintiff filed this action she was not in compliancewith the 180–day limitations period established by thissection. For this reason, her claims for age discriminationunder Ohio Revised Code §§ 4211.02 and 4211.99 are timebarred and must be dismissed.

Having determined that these claims are time barred, it isnot necessary for the Court to address Defendants' argumentthat Plaintiff's age claims under Ohio law are barred by herelection of remedies.

IV. Prima Facie Case of Age Discrimination

Although the Court has ruled that Plaintiff's agediscrimination claim is time-barred under 29 U.S.C. § 626(e),an analysis of the evidence presented reveals that even if shecould proceed with her claim, she cannot establish a primafacie case.

Plaintiff has essentially alleged a claim of age discriminationon the basis of a hostile work environment theory. Defendantsargue that the evidence presented is insufficient to supportsuch a claim and at most merely reflects hostility between co-workers rather than an age-hostile environment.

Fed.R.Civ.P. 56(c) governs summary judgment and provides:

The judgment sought shall be renderedforthwith if the pleadings, depositions,answers to interrogatories, andadmissions on file, together with theaffidavits, if any, show that there is nogenuine issue as to any material factand that the moving party is entitled tojudgment as a matter of law ...

The party moving for summary judgment bears the burdenof showing the absence of a genuine issue as to any materialfact, and for these purposes, the evidence submitted must beviewed in the light most favorable to the nonmoving partyto determine whether a genuine issue of material fact exists.



Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245(6th Cir.1995).

“The burden on the nonmoving party may be dischargedif the moving party demonstrates that the nonmoving partyhas failed to establish an essential element of his or hercase for which he or she bears the ultimate burden of proofat trial.” Morales v. American Honda Motor Co., Inc., 71F.3d 531, 535 (6th Cir.1995). If the moving party meets thisburden, only then must the nonmoving party present morethan a scintilla of evidence in support of his or her position.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct.2505, 2512, 91 L.Ed.2d 202 (1986). Summary judgment mustbe granted unless there is sufficient evidence favoring thenonmoving party for a judge or jury to return a verdict for thatparty. Id. at 249, 106 S.Ct. at 2510–2511.

[7] [8] [9] A hostile work environment requires theexistence of severe or pervasive and unwelcome verbal orphysical harassment because of a plaintiff's membership ina protected class. Meritor Sav. Bank, FSB v. Vinson, 477U.S. 57, 66–67, 106 S.Ct. 2399, 2405–2406, 91 L.Ed.2d 49(1986). Title VII of the Civil Rights Act makes it illegalfor an employer to “discriminate against any individual withrespect to his compensation, terms, conditions, or privilegesof employment because of such individual's race, color,religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). The ADEA forbids the identical conduct when thediscrimination is “because of such individual's age.” 29U.S.C. § 623(a)(1). With virtually little or no differencebetween the ADEA and Title VII, there is no reasonto differentiate between age discrimination claimants andmembers of *1193 other protected groups for purposesof bringing a hostile work environment claim; an ageclaimant's rights are simply protected by the ADEA ratherthan Title VII. Drez v. E.R. Squibb & Sons, Inc., 674 F.Supp.1432, 1436–37 (D.Kan.1987). Several courts have recognizedthat a plaintiff may establish violations of the ADEAby proving the existence of a hostile work environment.See Clemmer v. Enron Corp. et al., No. Civ. A. H–93–3550, 1995 WL 334372 (S.D.Tex., March 27, 1995);Eggleston v. South Bend Community Sch. Corp., 858 F.Supp.841, 847 (N.D.Ind.1994); Spence v. Maryland Cas. Co.,803 F.Supp. 649, 671 (W.D.N.Y.1992), aff'd. 995 F.2d1147 (2d Cir.1993). Accordingly, hostile work environmentallegations are equally cognizable in the age discriminationcontext as well as in situations involving Title VII claimants.

[10] A hostile work environment theory requires that theplaintiff show that (1) she was a member of protected

class; (2) she was subject to unwelcome harassment; (3)the harassment was prompted solely because of her age; (4)the harassment affected a term, condition, or privilege ofher employment; and (5) existence of respondeat superiorliability. Kotcher v. Rosa and Sullivan Appliance Center, Inc.,957 F.2d 59 (2d Cir.1992).

Defendants argue that Ms. Dunn has failed to presentsufficient facts to show that she was a victim of a hostileenvironment based on age. It is clear that plaintiff is withinthe protected class. Viewing the workplace incidents allegedin a light most favorable to plaintiff, she was subjectedto unwelcome harassment. A reasonable inference may bedrawn by a jury, based upon Ms. Dunn's deposition andaffidavit, that the harassment was because of her age. Thereis also sufficient evidence to establish a question of fact asto whether the terms and conditions of her employment wereaffected.

Defendants make much of the fact that some of the otheremployees were also over forty years of age. The factthat some employees are over forty does not correspondto an automatic lack of discrimination so as to precludesummary judgment. Defendant also emphasizes that isolatedstatements by a supervisor are insufficient to create an issueof material fact. Here, the record, when considered as a whole,contains sufficient outstanding issues of material fact withrespect to her claim that she was subjected to a hostile workenvironment due to her age.

[11] [12] However, Plaintiff encounters difficulties indemonstrating the last requirement of a valid hostilework environment action, i.e. respondeat superior liability.To show respondeat superior liability in co-workerdiscrimination cases, a plaintiff must prove that the employer,through its agents or supervisory personnel, knew orshould have known of the charged harassment and failedto implement prompt and appropriate corrective action.Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178,183 (6th Cir.1992), cert. denied, 506 U.S. 1041, 113 S.Ct.831, 121 L.Ed.2d 701.

Here, Ms. Dunn admitted that she did not complain aboutthe alleged incidents which serve as the basis for her action.Additionally, when a fellow co-worker brought similarconcerns to the attention of the Hospital, the offendingsupervisor was sent to “management sensitivity” trainingseminars. Therefore, the Hospital, if it indeed had knowledgeof the incidents, did take prompt and appropriate corrective



action. Because a prima facie case for age discriminationcannot be established, summary judgment must be granted.

V. Prima Facie Case of Retaliation

[13] The elements of a prima facie case of retaliation are(1) that a plaintiff engaged in a protected activity; (2) that theexercise of her protected rights was known to the defendants;(3) that the defendants thereafter took an employment actionadverse to plaintiff; and (4) that there was a causal connectionbetween the protected activity and the adverse employmentaction. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064,1066 (6th Cir.) (per curiam), cert. denied, 498 U.S. 984, 111S.Ct. 516, 112 L.Ed.2d 528 (1990).

[14] Ms. Dunn claims that after she filed her firstdiscrimination complaint, the previous harassment shesuffered from other employees and supervisors intensified.She also claims that she was retaliated against *1194through reprimands for her mistakes, a poor performancereview, a temporary reduction in the number of commercialbillers in the department, and being questioned about leavingwork early one day. Upon investigating her complaint, theOCRC determined that it was probable that the Hospitalengaged in unlawful discrimination practices. Defendantsargue that there is no evidence of any adverse employmentaction.

[15] Determining whether there was a materially adversechange in the terms or conditions of employment involves anobjective determination of whether the conduct of Ms. Dunn'ssupervisor and coworkers created such difficult or unpleasantworking conditions that a reasonable person in Ms. Dunn'sshoes could not tolerate them. Wilson v. Firestone Tire &Rubber Co., 932 F.2d 510, 515 (6th Cir.1991). The factsalleged in support of the retaliation claim are essentially thesame as those alleged in support of the age discriminationclaim. However, as with Plaintiff's age discrimination claim,the following facts indicate that there is insufficient evidenceto establish a prima facie case for retaliation.

For instance, Ms. Dunn cannot recall if she was disciplinedas a result of her mistakes. She cannot recall any of the“old” jokes made by co-workers. She did not report thecomments or whistling to a supervisor. The billers in thebusiness office were seated by financial groups with olderand younger billers on both sides of the room. The billerswere temporarily reduced for business reasons. She was notdemoted, threatened with dismissal, or forced to take a cutin pay. This evidence, when considered cumulatively, cannotsupport a finding that Ms. Dunn's working environment was

so unpleasant that a reasonable person could not tolerateit. Consequently, the facts do not constitute a materiallyadverse change in the terms or conditions of employment andsummary judgment must be granted.

VI. Intentional Infliction of Emotional Distress Claim

[16] Negligent infliction of emotional distress is notrecognized in the employment context in Ohio. See Antalis v.Department of Commerce, 68 Ohio App.3d 650, 589 N.E.2d429 (Ohio Ct.App. 10th Cir.1990).

[17] [18] To support a claim for the tort of intentionalinfliction of emotional distress under Ohio law, four elementsmust be proved:

(1) that the actor either intended to cause emotional distressor knew or should have known that actions taken wouldresult in serious emotional distress to the plaintiff;

(2) that the actor's conduct was extreme and outrageous,that it went beyond all possible bounds of decencyand that it can be considered as utterly intolerable in acivilized community;

(3) that the actor's actions were the proximate cause of theplaintiff's psychic injury; and

(4) that the mental anguish suffered by plaintiff is seriousand of a nature that no reasonable person could beexpected to endure it.

Bellios v. Victor Balata Belting Co., 724 F.Supp. 514,520 (S.D.Ohio 1989). See also Yeager v. Local UnionNo. 20, Teamsters, Chauffeurs Warehousemen, & Helpersof America, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983).Liability does not extend to mere insults, indignities, threats,annoyances, petty oppressions, or other trivialities. Yeager, 6Ohio St.3d at 375, 453 N.E.2d 666.

[19] Ms. Dunn has complained of comments which weredirectly related to her age, exclusion from office parties,increase in work load, cursing by her supervisor, thedumping of her birthday cake into the trash, and otherinsults or indignities. These incidents, she alleges, caused orcontributed to her stress and emotional distress. However, shedid not go to any medical provider other than her generalpractitioner physician for her annual check-up. Further, shedid not miss any work because of the stress or her workingenvironment.



Following the above standards, and even assuming that Ohiorecognizes the tort of intentional infliction of emotionaldistress in the employment context, there is insufficientevidence to show that the conduct Ms. Dunn complainedof was extreme and outrageous. *1195 The incidentscomplained of are not of the type to be considered as “utterlyintolerable in a civilized society.” Again, these facts suggesta likelihood of hostilities among co-workers rather thanintentional conduct by these defendants. Summary judgmentmust be granted in favor of all the defendants on this issue.

VI. CONCLUSION

For the reasons stated in this memorandum, Defendants'motion for summary judgment is GRANTED. Anappropriate order will accompany this memorandum opinion.

IT IS SO ORDERED.

ORDER

In accordance with the memorandum opinion this day filed,the Defendants Motion for Summary Judgment (Dkt. # 38)is GRANTED and the claims against the Defendants aredismissed with prejudice. This is a final and appealable orderand there is no just cause for delay.

IT IS SO ORDERED.

Parallel Citations

68 Empl. Prac. Dec. P 44,208

Footnotes1 Judge Paul R. Matia granted in part Defendants' motion to dismiss, dismissing Plaintiff's 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.

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


Twenty-nine individuals who were bricklayers or wished tobe bricklayers sued bricklayers union, its joint apprenticeshipcommittee, two contractor's associations, and six masonry orgeneral contractors. The suit alleged a pattern or practice ofracial discrimination in the bricklayer trade in the Toledoarea. On defendants' motions for summary judgment or, inthe alternative, motions to dismiss, the District Court, JohnW. Potter, J., held that: (1) complaint failed to state a claimunder § 1985(3); (2) complaint failed to state a claim under§ 1985(2); (3) claims of deceased plaintiffs abated pursuantto Ohio statute; and (4) holding of the Sixth Circuit that Ohiostatute of limitations for § 1981 actions is one year would beretroactively applied.

Motions granted.

West Headnotes (13)

[1] ConspiracyConspiracy to Interfere with Civil Rights

An action under § 1985(2) necessarily mustinvolve the intimidation of witnesses, parties,or court officers in an ongoing federal courtproceeding. 42 U.S.C.A. § 1985(2).

[2] ConspiracyPleading

Complaint alleging that joint apprenticeshipcommittee and union engaged in pattern orpractice of racial discrimination in the bricklayertrade in the Toledo area failed to state a cause ofaction under § 1985(3); count failed to adequatelyallege with particularity the necessary elements

of conspiracy and invidiously discriminatingactions. 42 U.S.C.A. § 1985(3).


[3] ConspiracyPleading

Complaint which alleged that joint apprenticeshipcommittee and union engaged in practice ofracial discrimination in the bricklayer trade inthe Toledo area failed to state a cause of actionunder § 1985(2); complaint did not sufficientlyallege necessary elements of conspiracy or anynexus with an ongoing federal court proceeding.42 U.S.C.A. § 1985(2).


[4] Federal CourtsAbatement and Revival

Whether a § 1981 claim of a deceased plaintiffsurvives his death is governed by state law. 42U.S.C.A. § 1981.


[5] Abatement and RevivalActions and Proceedings Which Abate

Section 1981 claims of plaintiffs were personalto plaintiffs, and therefore abated at their deaths,pursuant to Ohio statute. 42 U.S.C.A. § 1981;Ohio R.C. § 2311.21.


[6] Federal Civil ProcedureFailure to Appear or Testify; Sanctions

Federal Civil ProcedureFailure to Answer; Sanctions

A party's complaint may be dismissed for failingto appear for a properly noticed depositionor for failing to respond to properly servedinterrogatories; court may impose sanctiondirectly, without first issuing an order to compeldiscovery. Fed.Rules Civ.Proc.Rule 37(a), 28U.S.C.A.

EXHIBIT "C"



[7] Civil RightsDisparate Treatment

A black employee suing his employer under§ 1981 must prove not only that he wastreated differently than white employees, but alsothat his different treatment was the result ofdiscriminatory purpose. 42 U.S.C.A. § 1981.

[8] Civil RightsPrima Facie Case

Under Title VII, burden of proof is placed uponjob applicant to prove a prima facie case of racialdiscrimination by showing: that he belongs to aracial minority; that he applied and was qualifiedfor a job for which employer was seekingapplicants; that, despite his qualifications, he wasrejected; and that after his rejection, positionremained open and employer continued to seekapplicants from persons with his qualifications.Civil Rights Act of 1964, § 701 et seq., asamended, 42 U.S.C.A. § 2000e et seq.

[9] Civil RightsPresumptions, Inferences, and Burden of

Proof

In order to raise an inference of discriminationunder Title VII, a job applicant must eliminatethe two most common reasons why an applicantfor employment is rejected: either lack ofqualifications or lack of work. Civil Rights Act of1964, § 701 et seq., as amended, 42 U.S.C.A. §2000e et seq.

[10] Civil RightsExhaustion of Administrative Remedies

Before Resort to Courts

Prior to filing a Title VII suit claimant must filean administrative charge of discrimination withthe Equal Employment Opportunity Commission.Civil Rights Act of 1964, § 701 et seq., asamended, 42 U.S.C.A. § 2000e et seq.

[11] Civil Rights

Deferral to State Agencies; Time

In “deferral states” such as Ohio, where theEEOC defers to the state agency established toinvestigate charges of discrimination, an EEOCcharge must be filed within 300 days after thealleged unlawful act. Civil Rights Act of 1964, §706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1).

[12] Civil RightsDeferral to State Agencies; Time

When a charge of discrimination is submittedto both the Equal Employment OpportunityCommission and state agency in a “deferralstate,” the EEOC will not formally file itscharge of discrimination until after the stateagency has terminated its proceedings or 60 dayshave elapsed since filing of state administrativecharge, whichever occurs earlier; therefore, stateadministrative charge of discrimination mustgenerally be filed within 240 days of the allegedunlawful practice in order to preserve claimant'sright 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).

[13] CourtsIn General; Retroactive or Prospective

Operation

Holding of the Sixth Circuit that appropriateOhio statute of limitations for § 1981 actionsis one year would be retroactively applied toemployment discrimination claims; since the lawon the subject had been erratic and inconsistent,and without clear precedent on which plaintiffscould reasonably rely, retroactive application ofthe holding was not unfair. Ohio R.C. § 2305.11;42 U.S.C.A. § 1981.



*718 Wilbur Jacobs, William J. Peters, Toledo, Ohio, forplaintiffs.



Joseph W. Westmeyer, Jr., Joseph W. Westmeyer, Jr. Co.,Joseph J. Allotta, Allotta, Singer & Farley Co., Toledo, Ohio,for defendants.

Opinion

OPINION AND ORDER

JOHN W. POTTER, District Judge:

This matter is before the Court on defendants BricklayersJoint Apprenticeship Committee (JAC) and InternationalUnion of Bricklayers and Allied Craftsmen of Toledo, Ohio,Local Union No. 3 (Local 3) motions for summary judgmentor, in the alternative, motions to dismiss plaintiffs LonnieR. Alsup (Alsup), Washington Brown Sr. (Brown Sr.),Willie Brown, Jr. (Brown Jr.), Robert Cantrell (Cantrell),Jeffrey E. Clint (Clint), Charles Foster (Foster), WilliamGarcia (Garcia), Sylvester M. Gould Sr. (Gould), CharlesHarris (Harris), Lester Hollis (Hollis), Edward Holmes(Holmes), John L. Hughes (Hughes), Richard Hunter(Hunter), Marion Legare (Legare), Frederick Mars (Mars),Oneis McNeil (McNeil), Lloyd A. Meacham (Meacham),Roy Meredith (Meredith), Thomas A. Mullins (Mullins),Robert Pack (Pack), James Proctor (Proctor), LemoriaRobertson (Robertson), Angelo Robinson (Angelo), Will A.Robinson (Will), Robert Singletary (Singletary), Paul T.Sledge (Sledge), Ezra Wallace (Wallace), Robert Walker(Walker) and Isaac Watson (Watson), plaintiffs' opposition to

Local 3's motion and Local 3's reply. 1

As originally filed, this was an action in which 29 menwho were bricklayers or wished to be bricklayers suedLocal 3, JAC, two contractors' associations, The Toledo AreaHometown Plan, and six masonry or general contractors.Plaintiffs' suit alleges a pattern or practice of racialdiscrimination in the bricklayer trade in the Toledo area.

Plaintiffs' first claim alleges that the contractors associationsand The Hometown Plan entered into a conspiracy deprivingblacks of their civil rights and privileges. This claim is madeunder *719 42 U.S.C. § 1985(3). Plaintiffs' second claimfor relief alleges that the contractors associations and TheHometown Plan interfered with the access by blacks to federalcourt, in violation of 42 U.S.C. § 1985(2). Plaintiffs' thirdcause of action alleges a claim of racial discrimination inemployment against all defendants under Title VII of the 1964Civil Rights Act, 42 U.S.C. § 2000e et seq. Plaintiffs' final

claim alleges that defendants denied them the right to contractfor employment, in violation of 42 U.S.C. § 1981.

JAC and Local 3, pursuant to Fed.R.Civ.P. 12(b)(6), move todismiss Counts I and II of the complaint for failure to state aclaim upon which relief can be granted. A motion to dismissfor failure to state a claim should not be granted unless “itappears beyond doubt that plaintiffs can prove no set of factsin support of their claim which would entitle them to relief.”Banks v. City of Forest Park, 599 F.Supp. 465, 468 (S.D.Ohio1984). The factual allegations in the complaint are consideredas true and all reasonable inferences are construed in favorof the non-moving party. Id. at 468. However, the court is“required to accept only well pleaded facts as true ... not thelegal conclusions that may be alleged or that may be drawnfrom the pleaded facts.” Blackburn v. Fisk University, 443F.2d 121, 124 (6th Cir.1971). Furthermore,

[a] plaintiff pursuing a theory of conspiracy under thecivil rights act is “bound to do more than merely statevague and conclusory allegations respecting that existenceof a conspiracy. It [is] incumbent upon him to allegewith at least some degree of particularity overt acts whichdefendants engaged in which were reasonably related to thepromotion of the claimed conspiracy.”

Taylor v. Flint Osteopathic Hospital, Inc., 561 F.Supp.1152, 1156 (E.D.Mich.1983) (citations omitted). Thecomplaint must also contain specific allegations regarding theinvolvement of each defendant. Oldland v. Kurtz, 528 F.Supp.316, 322 (D.Colo.1981).

Counts I and II of plaintiffs' complaint states as follows:

The defendant contractors Associations, theAdministrative Committee and Executive Director ofthe Toledo Area Hometown Plan have entered into aconspiracy for the purpose of depriving blacks of theircivil rights and privileges as citizens of the UnitedStates. Since 1977 the Contractors Association hasfinanced the Hometown Plan and paid the salaries of itsemployees. Under the plan individual contractors submita monthly statistical profile of their workforce includingthose contractors who have government contracts tothe Executive Director of the Hometown Plan. TheAdministrative Committee's function is to monitor andenforce the Department of Labor's guidelines but ithas failed to do so. Despite the knowledge that allmason contractors are discriminating in employment, theAdministrative Committee and its Director has failed toinform the OFCCP of the underutilization of blacks and



has failed to recommend that any sanctions be takenagainst the contractors. The result of this conspiracyby the Contractors Associations and the AdministrativeCommittee has been to injure blacks, union members, andpotential black applicants to the exercise of their civil rightsand privileges as citizens of the United States.

The Contractors Associations and the AdministrativeCommittee of the Toledo Area Hometown Plan bysecreting all the contractors EEO reports showingunderutilization and violations of Executive Order No.11246, Title VII and 42 U.S.C. Section 1981, haveinterfered with the access by blacks to the federal court.

Complaint at ¶ 44–45.

Count I of plaintiffs' complaint purportedly alleges a violationof 42 U.S.C. § 1985(3). A claim under 42 U.S.C. § 1985(3)must allege:

the defendants did (1) “conspire or go in disguise on thehighway or on the premises of another” (2) “for the purposeof depriving, either directly or indirectly, any person orclass of persons of the equal protection of the laws, or ofequal privileges and immunities under the laws.” It mustthen assert that one or *720 more of the conspirators(3) did, or caused to be done, “any act in furtherance ofthe object of [the] conspiracy,” whereby another was (4a)“injured in his person or property” or (4b) “deprived ofhaving and exercising any right or privilege of a citizen ofthe United States.”

Griffin v. Breckenridge, 403 U.S. 88, 102–03, 91 S.Ct. 1790,1798–99, 29 L.Ed.2d 338 (1971).

Count II of plaintiffs' complaint purportedly alleges aviolation of 42 U.S.C. § 1985(2). The intent of § 1985(2) isto prevent conspiracies “the object of which is intimidationof or retaliation against parties or witnesses, or grand or petitjurors, in any court of the United States.” Brawer v. Horowitz,535 F.2d 830, 840 (3rd Cir.1976); Hahn v. Sargent, 523F.2d 461, 469 (1st Cir.1975), cert. denied, 425 U.S. 904, 96S.Ct. 1495, 47 L.Ed.2d 754 (1976). The statute's concern iswith conspiracies involving perjury, subornation or perjury,or criminal obstruction of justice. McCord v. Bailey, 636 F.2d606, 614–17 (D.C.Cir.1980), cert. denied, 451 U.S. 983, 101S.Ct. 2314, 68 L.Ed.2d 839 (1981).

[1] Thus an action under § 1985(2) necessarily must involvethe intimidation of witnesses, parties, or court officers inan ongoing federal court proceeding. In interpreting this

clause the courts have required a connection between theproscribed activities and a specific federal proceeding, anda connection between the conspiratorial conduct and thewitness, party, or juror. See, e.g., Bradt v. Smith, 634 F.2d796, 801 (5th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125,70 L.Ed.2d 106 (1981) (“no nexus whatsoever ... between thealleged conspiracy and any federal proceeding”); Brawer v.Horowitz, 535 F.2d 830, 840 (3rd Cir.1976).

[2] [3] Counts I and II of plaintiffs' complaint fail tostate a cause of action against JAC and Local 3. CountsI and II of plaintiffs' complaint fail to specifically makeany allegations against JAC and Local 3. Count I fails toadequately allege with particularity the necessary elements ofconspiracy and invidiously discriminating actions as requiredby Griffin. Furthermore, Count II does not sufficiently allegethe necessary elements of conspiracy or any nexus withany ongoing court proceeding. Therefore, pursuant to thecriteria of Fed.R.Civ.P. 12(b)(6), Counts I and II of plaintiffs'complaint fail to state a cause of action upon which relief maybe granted and JAC and Local 3's motions to dismiss CountsI and II are well taken.

[4] JAC and Local 3 contend that the claims of McNeil,Pack and Singletary have abated by reason of their deathsand therefore these claims should be dismissed. Whether a 42U.S.C. § 1981 claim of a deceased plaintiff survives his deathis governed by state law. Gee v. CBS, Inc., 471 F.Supp. 600,614 (E.D.Pa.), aff'd mem., 612 F.2d 572 (3rd Cir.1979). TwoOhio statutes govern the claims of deceased plaintiffs. Thefirst, Ohio Rev.Code § 2305.21, states as follows:

[i]n addition to the causes of actionwhich survive at common law, causesof action for mesne profits, or injuriesto the person or property, or fordeceit or fraud also shall survive;and such actions may be broughtnotwithstanding the death of theperson entitled or liable thereto.

Ohio Rev.Code Ann. § 2305.21 (Anderson 1981). Thesecond, Ohio Rev.Code § 2311.21, identifies those actionswhich abate at the time of a plaintiff's death:

[u]nless otherwise provided, no actionor proceeding pending in any courtshall abate by the death of either orboth of the parties thereto, exceptactions for libel, slander, maliciousprosecution, for a nuisance, or against



a judge of a county court formisconduct in office, which shall abateby the death of either party.

Ohio Rev.Code Ann. § 2311.21 (Anderson 1981).

A claim for relief under Section 1981 is considered to bepersonal in nature. Carter v. City of Emporia, 543 F.Supp.354, 356 (D.Kan.1982). As such, it is similar to actionsfor libel, slander and malicious prosecution which abate atthe time of the plaintiff's death pursuant to Ohio Rev.Code§ 2311.21. Under the survival and abatement statutes ofKansas, which are nearly identical to the statutes of Ohio, thecourt *721 concluded that plaintiff's claims under 42 U.S.C.§ 1981 were personal to the plaintiff and therefore abatedat his death. Id. at 356. Furthermore, when a defendant isunaware of a plaintiff's death before an answer is filed, theaction is a nullity as to that plaintiff and should be dismissed.7C C. Wright, A Miller, & M. Kane, Federal Practice andProcedure § 1951 at 522 & n. 12 (2d ed 1986).

[5] McNeil died on October 22, 1985. See Rudolph/Libbe,Inc. (Rudolph) Motion for Summary Judgment and Dismissalagainst McNeil. Pack died on January 27, 1986. See RudolphMotion for Dismissal and Summary Judgment against Pack.Singletary died on April 15, 1985. See Rudolph Motion forSummary Judgment against Singletary. Since these claimshave abated by reason of their deaths, JAC and Local3's motions to dismiss and/or summary judgment againstMcNeil, Pack and Singletary are well taken.

JAC and Local 3's motions for summary judgment against theremaining plaintiffs seek dismissal because plaintiffs failedto respond to discovery requests, plaintiffs cannot establisha prima facie case of discrimination under Title VII or 42U.S.C. § 1981 and/or plaintiffs' claims are barred by theapplicable statute of limitations.

[6] JAC and Local 3 contend that plaintiffs' failure to complywith discovery merits dismissal of their claims. Pursuant toFed.R.Civ.P. 37(a), a party's complaint may be dismissedfor failing to appear for a properly noticed deposition orfor failing to respond to properly served interrogatories. TheCourt may impose this sanction directly, without first issuingan order to compel discovery. Charter House InsuranceBrokers, Ltd. v. New Hampshire Insurance Co., 667 F.2d 600,604 (7th Cir.1981). Cf. Bell & Beckwith v. United States ofAmerica, Internal Revenue Service, 766 F.2d 910, 912 (6thCir.1985) (no abuse of discretion in dismissing a claim forfailure to appear at deposition even though there was no ordercompelling attendance). Furthermore, this Court issued an

order on June 12, 1987 ordering plaintiffs “to answer [JACand Local 3's] interrogatories on or before July 20, 1987.Plaintiffs' failure to comply with this order may result indismissal of plaintiffs' complaint against [JAC and Local 3].”

[7] Section 1981 of Title 42 states in pertinent part that“[a]ll persons within the jurisdiction of the United Statesshall have the same right in every State and Territoryto make and enforce contracts ... as is enjoyed by whitecitizens.” An employee suing his employer under Section1981 must prove not only that he was treated differentlythan white employees, but also that this different treatmentwas the result of discriminatory purpose. See GeneralBuilding Contractors Association v. Pennsylvania, 458 U.S.375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982);Smith v. Pan Am World Airways, 706 F.2d 771 (6thCir.1983). According to the United States Supreme Court,discriminatory purpose “implies that the decisionmaker ...selected or reaffirmed a particular course of action at least inpart ‘because of,’ not merely ‘in spite of’ its adverse effectsupon an identifiable group.” Personnel Administrator ofMassachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282,2296, 60 L.Ed.2d 870 (1979).

The Sixth Circuit Court of Appeals has stated that proofof a prima facie case under Title VII raises a rebuttablepresumption of purposeful racial discrimination underSection 1981. Jackson v. RKO Bottlers of Toledo, Inc., 743F.2d 370, 378 (6th Cir.1984). Therefore, liability under TitleVII and under Section 1981 rests on the same proof. Cooperv. City of North Olmsted, 795 F.2d 1265, 1270 n. 3 (6thCir.1986).

[8] [9] Under Title VII, the burden of proof is placedupon the plaintiff to prove a prima facie case of racialdiscrimination by showing the following:

(1) that he belongs to a racial minority;

(2) that he applied and was qualified for a job for which theemployer was seeking applicants;

(3) that, despite his qualifications, he was rejected; and

*722 (4) that after his rejection, the position remainedopen and the employer continued to seek applicants frompersons of complainant's qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Therefore, inorder to raise an inference of discrimination, a plaintiff must



eliminate the two most common reasons why an applicantfor employment is rejected—either lack of qualifications orlack of work. Gay v. Waiters' & Lunchmen's Union, LocalNo. 30, 694 F.2d 531, 547 (9th Cir.1982), citing InternationalBrotherhood of Teamsters v. United States, 431 U.S. 324,325, 358 n. 44, 97 S.Ct. 1843, 1849–50, 1866 n. 44, 52L.Ed.2d 396 (1977).

Plaintiffs allege that Local 3's failure to refer blackbrickmasons for work constitutes a racially discriminatorypractice. However, the collective bargaining agreementdoes not provide Local 3 with any involvement in thehiring process. Local 3 does not have a referral procedure.Therefore, contractors are not required to contact the unionfor new employees. Many of plaintiffs' alleged claims ofdiscrimination stem from an out-of-work list. However, thelist was discontinued in May, 1984. See JAC and Local 3Motions, Cappelletty Affidavit. Furthermore, any claims ofdiscriminatory treatment regarding pension fund benefits arewithin the preview of the fund administrator and not withinthe control of Local 3. Id.

Plaintiffs contend that the Supreme Court's decision inGoodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617,96 L.Ed.2d 572 (June 19, 1987) has a severe impact onthe issues in this case. However, plaintiffs incorrectly statethat this decision holds that the union violates both TitleVII and Section 1981 by passively sitting by and failingto affirmatively oppose racially discriminatory employmentpractices. Plaintiffs' Opposition to Defendant Union's Motionfor Summary Judgment at 2. The Supreme Court explicitlystated that “[w]e need not discuss this rather abstractobservation, for the court went on to say that the evidenceproves ‘far more’ than mere passivity.” Id. 482 U.S. at ––––,107 S.Ct. at 2623. The Court's holding in Goodman is that aunion may not fail to pursue properly submitted grievances“solely because the claims assert racial bias and would bevery troublesome to process.” Id. 482 U.S. at ––––, 107S.Ct. at 2625. In their responsive motion plaintiffs havenot specifically identified any instance in which Local 3failed to pursue a properly submitted grievance. Furthermore,Local 3 has never refused to assert any grievance claimingdiscriminatory treatment by an employer nor have any ofthese plaintiffs filed such a grievance with Local 3. See Local3 Motion, Cappalletty Affidavit.

Pursuant to the criteria of Fed.R.Civ.P. 56(e);

[w]hen a motion for summaryjudgment is made and supported as

provided in this rule, an adverseparty may not rest upon the mereallegations or denials of the adverseparty's pleading, but the adverseparty's response, by affidavits or asotherwise provided in this rule, mustset forth specific facts showing thatthere is a genuine issue for trial. Ifthe adverse party does not so respond,summary judgment, if appropriate,shall be entered against the adverseparty.

Fed.R.Civ.P. 56(e).

Therefore, once JAC and Local 3 have made and supportedtheir motions for summary judgment, plaintiffs may not restupon their pleadings but must set forth specific facts, therebycreating a genuine issue for trial.

[10] [11] However, prior to filing a lawsuit under TitleVII of the 1964 Civil Rights Act, 42 U.S.C. § 2000eet seq., the claimant must file an administrative chargeof discrimination with the Equal Employment OpportunityCommission (EEOC). Rasimas v. Michigan Department ofMental Health, 714 F.2d 614, 620 (6th Cir.1983), cert.denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984).In “deferral states” such as Ohio, where the EEOC defers tothe state agency established to investigate such charges ofdiscrimination, the EEOC charge must be filed within 300days after the alleged unlawful act. *723 42 U.S.C. § 2000e–5(e) (1981); Rasimas, 714 F.2d at 621.

[12] When a charge is submitted to both the EEOC andthe OCRC, the EEOC will not formally file its charge ofdiscrimination until after the state agency has terminatedits proceedings or 60 days have elapsed since the filingof the state administrative charge, whichever occurs earlier.Rasimas, 714 F.2d at 621. Therefore, the state administrativecharge of discrimination must generally be filed within 240days of the alleged unlawful practice in order to preserve theclaimant's right to file a Title VII lawsuit in federal court.Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct.2486, 2491 n. 16, 65 L.Ed.2d 532 (1980).

The claimant in an EEOC administrative proceeding maybring a civil action in federal court against the respondentnamed in the charge of discrimination within ninety daysafter issuance by the EEOC of a right to sue letter, which theEEOC issues either if it dismisses the charge or if it fails to



commence a civil action itself within the statutory period. 42U.S.C. § 2000e–5(f)(1) (1981).

[13] Section 1981 of Title 42 has no direct statute oflimitations. Therefore, the federal courts are required toapply the closest analogous state statute of limitations. TheSixth Circuit Court of Appeals has held that in Ohio theappropriate statute of limitations is the one year statute forcertain torts, Ohio Rev.Code § 2305.11. Demery v. City ofYoungstown, 818 F.2d 1257 (6th Cir.1987). In Demery, thecourt recognized that the statute of limitations in § 1981actions was not a settled issue in the Sixth Circuit. Demery,at 1261–62 (Guy, J., concurring); Mason v. Owens–Illinois,Inc., 517 F.2d 520 (6th Cir.1975) (application of the six-yearstatute of limitations); Sutton v. Bloom, 710 F.2d 1188 (6thCir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79L.Ed.2d 221 (1984), (application of the six-month statute oflimitations). Furthermore, after Wilson v. Garcia, 471 U.S.261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), was decided,the statute of limitations in § 1983 and § 1981 actionsbecame less clear in each circuit. Therefore, since the lawhas been “erratic and inconsistent, without clear precedenton which plaintiff could reasonably rely in waiting to filesuit,” Goodman v. Lukens Steel Co., 482 U.S. 656, ––––, 107S.Ct. 2617, 2622 n. 8, 96 L.Ed.2d 572 (1987), the retroactiveapplication of Demery to this proceeding is not unfair orotherwise violative of the principles of Chevron Oil Co. v.Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Seealso McSurely v. Hutchison, 823 F.2d 1002 (6th Cir. July 24,1987); Saint Francis College v. Majid Ghaidon Al–Khazraji,481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (May 18, 1957)(clearly establish precedent thereby negating the applicationof retroactivity).

Plaintiff Alsup has no claim of discrimination against JAC.Alsup Deposition at 20. Alsup's claims of discriminationagainst Local 3 occurred in 1982. Id. at 21, 24 & 30. Alsup'sclaims of discrimination against Local 3 are barred by thestatute of limitations. Therefore, JAC and Local 3's motionspertaining to Alsup are well taken.

Plaintiff Brown Sr. has no claim of discrimination againstJAC. Brown Sr. Deposition at 8–9. Brown Sr. has hadno contact with Local 3 since before 1975. Id. at 12–13.Furthermore, Brown Sr. has failed to answer JAC or Local3's interrogatories. Brown Sr. filed a charge of discriminationwith the EEOC on May 23, 1985. Since any claim ofdiscrimination against Local 3 occurred before 1975, BrownSr.'s claims of discrimination against Local 3 are barred by theapplicable statute of limitations. Also, Brown Sr. is subject to

dismissal for failure to comply with this Court's order and therules of civil procedure. Therefore, JAC and Local 3's motionspertaining to Brown Sr. are well taken.

Plaintiff Brown Jr. has no claim of discrimination againstJAC. Brown Jr. Deposition at 25. Brown has had no contactwith Local 3 since 1977. Id. at 29. Since any claims ofdiscrimination against Local 3 occurred before 1977, BrownJr.'s claims of discrimination against Local 3 are barred bythe statute of limitations. Therefore, *724 JAC and Local 3'smotions pertaining to Brown Jr. are well taken.

Plaintiff Cantrell has no claim of discrimination against JAC.Cantrell Deposition at 46–47. Cantrell claims that Local 3discriminated against him on two occasions, both of whichoccurred before 1983. Id. at 57–58. Cantrell filed a chargeof discrimination with the EEOC on May 3, 1985. Cantrell'sclaims of discrimination against Local 3 are barred by theapplicable statute of limitations. Therefore, JAC and Local 3'smotions pertaining to Cantrell are well taken.

Plaintiff Clint claims that JAC discriminated against Clintby not accepting him for the apprenticeship program in1980. Clint Deposition at 37–38. Clint claims that Local 3discriminated against him in connection with JAC's failureto accept him into the apprenticeship program in 1980. Id.at 39. Clint filed a charge of discrimination with the EEOCon June 24, 1985. Clint failed to answer JAC and Local3's interrogatories. Clint's claims of discrimination againstJAC and Local 3 are barred by the applicable statute oflimitations. Furthermore, Clint is subject to dismissal for hisfailure to comply with this Court's order and the rules of civilprocedure. Therefore, JAC and Local 3's motions pertainingto Clint are well taken.

Plaintiff Foster has no claim of discrimination against JAC.Foster Deposition at 17. Foster's claims of discriminationagainst Local 3 occurred in 1971–74 as a result of Local 3'sfailure to reimburse Foster for the partial payment of initiationfees. Id. at 17–18. Foster's claims of discrimination againstLocal 3 are barred by the statute of limitations. Therefore,JAC and Local 3's motions pertaining to Foster are well taken.

Since plaintiff Garcia's application with JAC in 1953–54,Garcia has had no contact with JAC. Garcia Deposition at30. Garcia has had no claim of discrimination against Local 3since 1979. Id. at 32. Garcia's claims of discrimination againstJAC and Local 3 are barred by the statute of limitations.Therefore, JAC and Local 3's motions pertaining to Garciaare well taken.



Plaintiff Gould has never applied to JAC and has hadno claim of discrimination or mistreatment by JAC since1979. Gould Deposition at 12. Gould has had no claim ofdiscrimination against Local 3 since 1979. Gould's claims ofdiscrimination against JAC and Local 3 are barred by thestatute of limitations. Therefore, JAC and Local 3's motionspertaining to Gould are well taken.

Plaintiff Harris has no claim of discrimination against JAC.Harris Deposition at 13–14. Harris' claims of discriminationagainst Local 3 regard Local 3's referral procedure and theout-of-work list. The out-of-work list was discontinued in1984. Therefore, any claims of discrimination regarding theout-of-work list are barred by the statute of limitations.Furthermore, Local 3 is not a referral hall. See CappellettyAffidavit. Therefore, pursuant to the criteria of Fed.R.Civ.P.56, there is no genuine issue of material fact regarding Harris'claims of discrimination agains Local 3. JAC and Local 3'smotions pertaining to Harris are well taken.

Plaintiff Hollis has no claim of discrimination against JAC.Hollis Deposition at 15. Hollis' claim of discriminationagainst Local 3 occurred in 1982. Id. at 17–18. Hollis fileda charge of discrimination with the EEOC on May 3, 1985.Hollis' claims of discrimination against Local 3 are barredby the applicable statute of limitations. Therefore, JAC andLocal 3's motions pertaining to Hollis are well taken.

Plaintiff Holmes failed to appear at the properly noticeddeposition. In answers to interrogatories, Holmes revealedthat he never applied to JAC and the only claim ofdiscrimination against Local 3 occurred in 1944. Holmes issubject to dismissal for failure to appear at the deposition.Furthermore, any claims of discrimination against Local 3 arebarred by the statute of limitations. Therefore, JAC and Local3's motions pertaining to Holmes are well taken.

Plaintiff Hughes' claims of discrimination against JACoccurred between 1972– *725 75. Hughes Deposition at33 & 35. Holmes claim of discrimination against Local3 occurred during Holmes' apprenticeship between 1972and 1974 or 1975. Id. at 36. Hughes filed a charge ofdiscrimination with the EEOC on May 3, 1985. Hughes'claims of discrimination are barred by the applicable statute oflimitations. Therefore, JAC and Local 3's motions pertainingto Hughes are well taken.

Plaintiff Hunter has had no claim of discrimination againstJAC or Local 3 since 1979. Hunter Deposition at 29 & 26–27. Hunter filed a charge of discrimination with the EEOC on

May 23, 1985. Hunter's claims of discrimination against JACand Local 3 are barred by the applicable statute of limitations.Therefore, JAC and Local 3's motions pertaining to Hunterare well taken.

Plaintiff Legare has no claim of discrimination against JAC.Legare Deposition at 17. Since 1979 Legare has had no claimof discrimination against Local 3. Legare filed a charge ofdiscrimination with the EEOC on May 23, 1985. Legare'sclaims of discrimination against Local 3 are barred by theapplicable statute of limitations. Therefore, JAC and Local 3'smotions pertaining to Legare are well taken.

Plaintiff Mars has had no claim of discrimination againstJAC since 1979. Mars Deposition at 66. Mars' claims ofdiscrimination against Local 3 involve the out-of-work listwhich was discontinued in 1984. Id. at 66. Also, Marsclaims discrimination while working at The University ofToledo in 1983. Id. at 73–77. Mars charges Local 3 withdiscriminating against him by never appointing him to acommittee. However, Mars never asked for an appointment.Id. at 38. Mars' claims of discrimination against Local 3 arebarred by the statute of limitations. Furthermore, pursuant tothe criteria of Fed.R.Civ.P. 56, Mars has failed to establisha genuine issue of material fact to support his claim ofdiscrimination against Local 3. Therefore, JAC and Local 3'smotions pertaining to Mars are well taken.

Plaintiffs Meacham and Walker failed to appear at theirscheduled depositions. Also, Meacham and Walker failed torespond to JAC and Local 3's interrogatories. Therefore, sinceMeacham and Walker failed to comply with this Court's orderand failed to attend the properly noticed deposition, JAC andLocal 3's motions pertaining to Meacham and Walker are welltaken.

Plaintiff Meredith has had no claim of discrimination againstJAC since 1979. Meredith Deposition at 10. Meredith's claimsof discrimination against Local 3 regard Local 3's failure torefer him for employment. Id. at 10–11 & 15. However, sinceLocal 3 is not a hiring hall, Meredith has failed to establisha genuine issue of fact to support his claim of discriminationagainst Local 3. See Cappalletty Affidavit. Furthermore,Meredith's claims of discrimination against JAC are barredby the statute of limitations. Therefore, JAC and Local 3'smotions pertaining to Meredith are well taken.

Plaintiff Mullins has had no claim of discrimination againstJAC or Local 3 since 1979. Mullins Deposition at 13–16.Mullins' claims of discrimination against JAC or Local 3 are



barred by the statute of limitations. Therefore, JAC and Local3's motions pertaining to Mullins are well taken.

Plaintiff Proctor has no claim of discrimination or unfairtreatment against JAC. Proctor Deposition at 12–13. Since1979, Proctor has had no claim of discrimination againstLocal except he feels he is entitled to additional pension fundbenefits. Id. at 15–17. Proctor filed a charge of discriminationwith the EEOC on May 3, 1985. However, since Local 3 hasno involvement in the pension fund benefits, pursuant to thecriteria of Fed.R.Civ.P. 56, Proctor has failed to establish agenuine issue of fact to support his claim fo discriminationagainst Local 3. See Cappelletty Affidavit. Furthermore, anyclaims of discrimination by Local 3 occurring before 1979 arebarred by the statute of limitations. Therefore, JAC and Local3's motions pertaining to Proctor are well taken.

Plaintiff Robertson has no claim of discrimination againstJAC or Local 3. Robertson Deposition at 15 & 22. Therefore,*726 JAC and Local 3's motions pertaining to Robertson are

well taken.

Plaintiff Angelo failed to appear at the properly noticeddeposition. However, in response to JAC's interrogatories,Angelo admitted that he never applied to JAC. In responseto Local 3's interrogatories, Angelo's claims of discriminationagainst Local 3 are in connection with the out-of-work list anddiscriminatory testing prior to 1950. Angelo filed a chargeof discrimination with the EEOC on May 3, 1985. Since theout-of-work list was discontinued in 1984, Angelo's claimsof discrimination are barred by the statute of limitations.Therefore, JAC and Local 3's motions pertaining to Angeloare well taken.

Plaintiff Will has no claim of discrimination against JAC.Will Deposition at 14. Will has had no claim of discriminationagainst Local 3 since 1978. Id. at 23. Will's claims ofdiscrimination against Local 3 are barred by the statute oflimitations. Therefore, JAC and Local 3's motions pertainingto Will are well taken.

Plaintiff Sledge has had no claim of discrimination againstJAC since 1979. Sledge Deposition at 29–30. Sledge's claimsof discrimination against Local 3 regard Local 3's failureto refer him for employment. Id. at 45–49. Sledge filed a

charge of discrimination with the EEOC on May 3, 1985.Since Local 3 was not a hiring hall, Sledge has failed toestablish a genuine issue of material fact to support his claimof discrimination against Local 3. See Cappelletty Affidavit.Furthermore, Sledge's claims of discrimination against JACare barred by the applicable statute of limitations. Therefore,JAC and Local 3's motions pertaining to Sledge are welltaken.

Plaintiff Wallace has no claim of discrimination against JAC.Wallace Deposition at 38. Wallace retired as a brick mason in1979 and has had no contact with Local 3 since 1979. Id. at38. Any claims of discrimination against Local 3 are barredby the statute of limitations. Therefore, JAC and Local 3'smotions pertaining to Wallace are well taken.

Plaintiff Watson has no claim of discrimination againstJAC. Watson Deposition at 38. Furthermore, Watson cannotidentify any specific acts of discrimination by Local 3 excepta comment by a Local 3 agent asking Watson why he hadnot retired. Id. at 47, 52 & 44. Since the comment does notestablish any genuine issue of fact to support Watson's claimsof discrimination and since Watson cannot identify any otherincidents, Watson has failed to establish a genuine issueof material fact pursuant to the criteria of Fed.R.Civ.P. 56.Therefore, JAC and Local 3's motions pertaining to Watsonare well taken.

THEREFORE, for the foregoing reasons, good causeappearing, it is

ORDERED that JAC's motion for summary judgment or,in the alternative, motion to dismiss be, and hereby is,GRANTED; and it is

FURTHER ORDERED that Local 3's motion for summaryjudgment or, in the alternative, motion to dismiss be, andhereby is, GRANTED; and it is

FURTHER ORDERED that JAC and Local 3's motion tovacate the trial date be, and hereby is, DENIED as moot.

Parallel Citations

45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P37,687

Footnotes1 Plaintiffs have not opposed JAC's motion. On August 25, 1987, plaintiffs' response to Local 3's motion was filed. Plaintiffs' response

was filed twenty-five days after Local 3's motion was filed. Pursuant to L.Civ.R. 3.01(3) “each party opposing this motion shall serveand file within ten (10) days thereafter a brief written statement of reasons in opposition to the motion and a list of the authorities on



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 conjunctionwith Fed.R.Civ.P. 6(a), plaintiffs were required to file their brief within 10 days. Since plaintiffs have not requested an extension oftime in which to file their response, this response is not timely.


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...


Involuntarily retired employee brought suit against hisformer employer, charging that he had been forced to retirebecause of his age in violation of the Age Discrimination inEmployment Act. The United States District Court for theSouthern District of Iowa denied the employer's motion todismiss, and the employer appealed. The Court of Appeals,580 F.2d 298, affirmed. Certiorari was granted, and theUnited States Supreme Court, Mr. Justice Brennan, heldthat: (1) under the Age Discrimination in Employment Act,resort to administrative remedies by claimants in stateswith agencies empowered to remedy age discrimination ismandatory, not optional, and suit in federal court may notbe brought under the ADEA unless the claimant has firstcommenced a proceeding with the appropriate state agency;(2) the fact that age discrimination complainants may filecomplaints with state and federal agencies simultaneouslydoes not permit age discrimination complainants to ignorestate remedies; (3) though the ADEA requires that thecomplainant commence state proceedings it does not requirethat the complainant commence those proceedings withinthe time period allotted by state law in order to preserve aright of action under the ADEA, and (4) the complainantcould comply with ADEA requirements by filing a signedcomplaint with the Iowa State Civil Rights Commission,even though the 120-day Iowa limitations period of agediscrimination claims had passed.

Judgment of the Court of Appeals reversed and remanded.

Mr. Justice Blackmun concurred and filed opinion.

Opinion on remand, 602 F.2d 183.

Mr. Justice Stevens concurred in part and dissented in partand filed opinion in which Mr. Chief Justice Burger and Mr.Justice Powell and Mr. Justice Rehnquist joined.

West Headnotes (12)

[1] Civil RightsExhaustion of state or local remedies

Under the section of the Age Discriminationin Employment Act which provides that in thecase of an alleged unlawful practice occurringin a state which has a law prohibiting agediscrimination in employment and authorizing astate authority to grant or seek relief from suchdiscriminatory practice, no suit may be broughtunder the ADEA before the expiration of 60 daysafter proceedings have been commenced underthe state law, an aggrieved person must resortto appropriate state remedies before bringingage discrimination suit in federal court. AgeDiscrimination in Employment Act of 1967, §§7(c), 14(b), 29 U.S.C.A. §§ 626(c), 633(b).


[2] Civil RightsDeferral to state agencies; time

Civil RightsExhaustion of state or local remedies

Though the Age Discrimination in EmploymentAct makes resort to administrative remediesmandatory in states with agencies empoweredto remedy age discrimination in employment, aperson aggrieved by alleged age discrimination isnot required by the ADEA to commence the stateproceedings within the time limit specified bystate law. Age Discrimination in Employment Actof 1967, §§ 7(c), 14(b), 29 U.S.C.A. §§ 626(c),633(b).



Civil RightsTime for proceedings; limitations

By enacting the section of the Civil Rights Actof 1964 which provides that in the case of analleged unlawful employment practice occurringin a state which has a law prohibiting the alleged

EXHIBIT "E"



unlawful practice and establishing or authorizinga state authority to grant or seek relief fromsuch a practice, no charge may be filed beforethe expiration of 60 days after proceedingshave been commenced under state law, Congressintended to screen from the federal courts thosecivil rights problems that could be settled tothe satisfaction of the grievant in a voluntaryand localized manner; the section is intendedto give state agencies a limited opportunity toresolve problems of employment discriminationand thereby to make resort to federal reliefunnecessary. Civil Rights Act of 1964, § 706(b)as amended 42 U.S.C.A. § 2000e-5(c).


[4] StatutesStatutes Relating to the Same Subject Matter

in General

In view of fact that Title VII and the AgeDiscrimination in Employment Act share thecommon purpose to eliminate discrimination inthe work place and where the language of acertain section of the ADEA was almost inhaec verba with a section of Title VII andthe legislative history of the ADEA provisionindicated that its source was the Title VIIprovision, court was warranted in concluding thatCongress intended that construction of the ADEAprovision follow that of the parallel section ofTitle VII. Age Discrimination in Employment Actof 1967, § 14(b), 29 U.S.C.A. § 633(b); CivilRights Act of 1964, § 706(b) as amended 42U.S.C.A. § 2000e-5(c).



Like the parallel section of the Civil Rights Actof 1964, the section of the Age Discriminationin Employment Act which sets forth mandatoryprocedures to be followed by age discriminationcomplainants in states with agencies empoweredto remedy age discrimination in employmentwas intended to screen from federal courtsthose discrimination complaints that might be

settled to the satisfaction of the grievant in stateproceedings. Age Discrimination in EmploymentAct of 1967, § 14(b), 29 U.S.C.A. § 633(b); CivilRights Act of 1964, § 706(b) as amended 42U.S.C.A. § 2000e-5(c).


[6] Civil RightsExistence of other remedies; exclusivity

Civil RightsExistence of other remedies; exclusivity

The Age Discrimination in Employment Actpermits grievants to file with state and federalagencies simultaneously in order to expeditethe processing of age discrimination claims;the premise for this difference is that thedelay inherent in sequential state and federaladministrative jurisdiction would be particularlyprejudicial to the rights of older citizens to whomrelatively few productive years are left. AgeDiscrimination in Employment Act of 1967, §§7(d), 14(a, b), 29 U.S.C.A. §§ 626(d), 633(a, b).


[7] StatutesLegislative construction

For purposes of statutory construction, legislativeobservations made years after the enactment ofa statute are in no sense part of the legislativehistory; it is the intent of the Congress thatenacted the section that controls.


[8] StatutesLegislative hearings, reports, etc

Whatever evidence concerning Congress' intentin enacting a certain provision might be providedby a committee report written 11 years laterwas plainly insufficient to overcome clear andconvincing evidence concerning congressionalintent at the time of the enactment.


[9] Civil Rights



Time for proceedings; limitations

For purposes of the section of the AgeDiscrimination in Employment Act whichprovides that if a state authority imposesrequirements other than a requirement of thefiling of a written and signed statement of thefacts upon which the proceeding is based, anage discrimination proceeding shall be deemedto have commenced at the time such statementis sent by registered mail to the appropriatestate authority, state limitations periods arerequirements “other than a requirement of thefiling of a written and signed statement of thefacts” and, therefore, even if a state were to maketimeliness a precondition for commencement,rather than following the more typical patternof making untimeliness an affirmative defense, astate proceeding would nevertheless be deemedcommenced for purposes of the ADEA as soonas the complaint is filed. Age Discrimination inEmployment Act of 1967, § 14(b), 29 U.S.C.A.§ 633(b).



The section of the Age Discriminationin Employment Act which requires anaggrieved person to resort to appropriate stateadministrative proceedings before bringing suitin federal court was intended only to give stateagencies a limited opportunity to settle grievancesof ADEA claimants in a voluntary and localizedmanner so that the claimants thereafter have noneed or desire for independent federal relief;individuals should not be penalized if statesdecline, for whatever reason, to take advantageof these opportunities. Age Discrimination inEmployment Act of 1967, § 14(b), 29 U.S.C.A.§ 633(b).


[11] Civil RightsTime for proceedings; limitations

In view of fact that the Age Discrimination inEmployment Act set forth limitations periods in

explicit terms and that those periods adequatelyprotected defendants against stale claims, theSupreme Court would not attribute to Congressan intent to add to those explicit requirements byimplication and to incorporate by reference intothe ADEA the various state age discriminationstatutes of limitations. Age Discrimination inEmployment Act of 1967, §§ 7(d, e), 14(b), 29U.S.C.A. §§ 626(d, e), 633(b).


[12] Civil RightsTime for proceedings; limitations

Even though the 120-day Iowa statute oflimitations on age discrimination claims had run,complainant could comply with the mandatoryrequirement of the Age Discrimination inEmployment Act that he first resort to stateadministrative remedies by filing a signedcomplaint with the Iowa State Civil RightsCommission. Age Discrimination in EmploymentAct of 1967, § 14(b), 29 U.S.C.A. § 633(b).


**2068 *750 Syllabus *

Section 14(b) of the Age Discrimination in Employment Actof 1967 (ADEA) provides that in the case of an allegedunlawful practice occurring in a State which has a lawprohibiting discrimination in employment because of ageand authorizing a state authority to grant and seek relieffrom such discriminatory practice, no suit may be broughtunder § 7(c) of the ADEA before the expiration of 60 daysafter proceedings have been commenced under the statelaw, unless such proceedings have been earlier terminated.Section 14(b) also provides that if any requirement for thecommencement of such proceedings is imposed by a stateauthority other than a requirement of a filing of a writtenand signed statement of the facts upon which the proceedingis based, the proceeding shall be deemed to have beencommenced for the purposes of § 14(b) at the time suchstatement is sent by registered mail to the appropriate stateauthority. Respondent, who had been involuntarily retiredafter 23 years of employment by petitioner company, filed



with the United States Department of Labor a notice of intentto sue the company under the ADEA, charging that he hadbeen forced to retire because of his age in violation of theAct. Upon respondent's inquiry, the Department informedhim that the ADEA contained no requirement that he file astate complaint in order to preserve his federal rights. Afterfederal conciliation efforts failed, respondent brought suitagainst petitioner company and company officials in FederalDistrict Court, which denied petitioners' motion to dismissthe complaint on the grounds that the Iowa State Civil RightsCommission was empowered to remedy age discriminationin employment and that § 14(b) required resort to this stateremedy prior to the commencement of the federal suit. TheCourt of Appeals affirmed.

Held:

1. Under § 14(b), resort to administrative remedies byclaimants in States with agencies empowered to remedy agediscrimination in employment (deferral States) is mandatory,not optional, and federal suit **2069 may not be broughtunder the ADEA unless the claimant has first commenced aproceeding with the appropriate state agency. Pp. 2071-2073.

(a) Since the ADEA and Title VII of the Civil Rights Actof 1964 *751 share the common purpose of the eliminationof discrimination in the workplace, since the language of §14(b) is almost in haec verba with § 706(c) of Title VII, whichhas been interpreted to require individuals in deferral Statesto resort to appropriate state proceedings before bringing suitunder Title VII, and since the legislative history of § 14(b)indicates that its source was § 706(c), it may be properlyconcluded that Congress intended that the construction of §14(b) should follow that of § 706(c). P. 2071.

(b) Claimants do not have the option to ignore state remediesmerely because under the ADEA, unlike Title VII, theymay file with state and federal agencies simultaneously. TheADEA permits concurrent rather than sequential state andfederal administrative jurisdiction in order to expedite theprocessing and settling of age-discrimination claims, and thusthe possibility of concurrent state and federal cognizance doesnot support the construction of § 14(b) that ADEA grievantsmay ignore state remedies altogether. A Committee Reportaccompanying 1978 ADEA amendments which suggestedthat resort to state remedies should be optional under § 14(b)is insufficient to overcome the clear and convincing evidencethat Congress, in 1967, intended § 14(b) to have the samemeaning as § 706(c). Pp. 2071-2073.

2. However, a grievant is not required by § 14(b) to commencestate proceedings within time limits specified by state law.Pp. 2073-2075.

(a) By its terms, § 14(b) requires only that state proceedingsbe “commenced” 60 days before federal litigation isinstituted, and use of the word “commenced” strongly impliesthat state limitations periods are irrelevant. This implicationis made express by the provision in § 14(b) that if a stateauthority imposes requirements “other than a requirementof the filing of a written and signed statement of the factsupon which the proceeding is based,” the proceeding shallbe deemed to have been commenced for purposes of §14(b) at the time such statement is sent by registered mailto the appropriate state authority. State limitations periodsare requirements other than that specified in § 14(b) and,thus, even if a State were to make timeliness a preconditionfor commencement, a state proceeding will be deemedcommenced for purposes of § 14(b) as soon as the complaintis filed. P. 2073.

(b) This construction of the statute is consistent both with theADEA's remedial purposes and with the purposes of § 14(b),which does not stipulate an exhaustion requirement, but isintended only to give state agencies a limited opportunity tosettle the grievances of ADEA claimants in a voluntary andlocalized manner so that the grievants thereafter have no needor desire for independent federal relief. *752 The ADEA'sstructure-setting forth limitations periods in explicit terms in§§ 7(d) and (e), not § 14(b)-reinforces the conclusion thatstate procedural defaults cannot foreclose federal relief andthat state limitations periods cannot govern the efficacy of thefederal remedy. Pp. 2074-2075.

3. Even though Iowa's 120-day statute of limitations hasrun, respondent may yet comply with the requirements of §14(b) by simply filing a signed complaint with the Iowa StateCivil Rights Commission. That Commission must be givenan opportunity to entertain respondent's grievance beforehis federal litigation can continue. Meanwhile the federalsuit should be held in abeyance, rather than be dismissedwith leave to refile, because respondent has already filed atimely federal complaint and to require a second filing wouldserve no purpose other than the creation of an additionalprocedural technicality. If respondent's state complaint issubsequently dismissed as untimely, he may then return tofederal court; but until that happens, or **2070 until 60 dayshave passed without a settlement, respondent must pursue hisstate remedy. P. 2076.



580 F.2d 298, reversed and remanded.


James W. Gladden, Jr., Chicago, Ill., for petitioners.

Allan A. Ryan, Jr., Washington, D. C., for the U. S., as amicuscuriae, supporting respondent, by special leave of Court.

Mark W. Bennett, Des Moines, Iowa, for respondent.

Opinion

*753 Mr. Justice BRENNAN delivered the opinion of theCourt.

Section 14(b) of the Age Discrimination in Employment Actof 1967 (ADEA), 81 Stat. 607, as set forth in 29 U.S.C. §633(b), provides in pertinent part:

“In the case of an alleged unlawful practice occurringin a State which has a law prohibiting discrimination inemployment because of age and establishing or authorizing aState authority to grant or seek relief from such discriminatorypractice, no suit may be brought under section 626 of thistitle before the expiration of sixty days after proceedingshave been commenced under the State law, unless suchproceedings have been earlier terminated: Provided, . . . [i]fany requirement for the commencement of such proceedingsis imposed by a State authority other than a requirementof the filing of a written and signed statement of the factsupon which the proceeding is based, the proceeding shall bedeemed to have been commenced for the purposes of thissubsection at the time such statement is sent by registered mailto the appropriate State authority.”

This case presents three questions under that section. First,whether § 14(b) requires an aggrieved person to resort toappropriate state remedies before bringing suit under § 7(c)of the ADEA, 29 U.S.C. § 626(c). Second, if so, whether,the state proceedings must be commenced within time limitsspecified by state law in order to preserve the federal right ofaction. Third, if so, whether any circumstances may excusethe failure to commence timely state proceedings.

[1] [2] We hold that § 14(b) mandates that a grievantnot bring suit in federal court under § 7(c) of the ADEAuntil he has first resorted to appropriate state administrativeproceedings. We also hold, however, that the grievant isnot required by § 14(b) to commence the state proceedingswithin time limits specified by state law. In light of these

holdings, it is not *754 necessary to address the question ofthe circumstances, if any, in which failure to comply with §14(b) may be excused.

I

Respondent Joseph Evans was employed by petitioner OscarMayer & Co. for 23 years until his involuntary retirement inJanuary 1976. On March 10, 1976, respondent filed with theUnited States Department of Labor a notice of intent to suethe company under the ADEA. Respondent charged that hehad been forced to retire because of his age in violation of theAct. At approximately this time respondent inquired of theDepartment whether he was obliged to file a state complaint inorder to preserve his federal rights. The Department informedrespondent that the ADEA contained no such requirement.Relying on this official advice, respondent refrained fromresorting to state proceedings. On March 7, 1977, after federalconciliation efforts had failed, respondent brought suit againstpetitioner company and company officials in the UnitedStates District Court for the Southern District of Iowa.

Petitioners moved to dismiss the complaint on the groundsthat the Iowa State Civil Rights Commission was empoweredto remedy age discrimination in employment and that §14(b) required resort to this state remedy prior to thecommencement of the federal suit. The District Court deniedthe motion, and the Court of Appeals for the **2071

Eighth Circuit affirmed. 1 580 F.2d 298 (1978). We grantedcertiorari, 439 U.S. 925, 99 S.Ct. 308, 58 L.Ed.2d 318 (1978).We reverse.

II

Petitioners argue that § 14(b) mandates that in Stateswith agencies empowered to remedy age discrimination inemployment (deferral States) a grievant may not bring suit*755 under the ADEA unless he has first commenced a

proceeding with the appropriate state agency. Respondent,on the other hand, argues that the grievant has the optionof whether to resort to state proceedings, and that § 14(b)requires only that grievants choosing to resort to stateremedies wait 60 days before bringing suit in federal court.The question of construction is close, but we conclude thatpetitioners are correct.

[3] Section 14(b) of the ADEA was patterned after andis virtually in haec verba with § 706(c) of Title VII of theCivil Rights Act of 1964 (formerly 706(b)), 78 Stat. 259, as



redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(c). 2 Therelevant portion of § 706(c) reads as follows:

“In the case of an alleged unlawful employment practiceoccurring in a State, . . . which has a . . . law prohibitingthe unlawful employment practice alleged and establishingor authorizing a State . . . authority to grant or seek relieffrom such practice . . ., no charge may be filed . . . by theperson aggrieved before the expiration of sixty days afterproceedings have been commenced under the State . . . law,unless such proceedings have been earlier terminated . . . .”

Congress intended through § 706(c) to screen from the federalcourts those problems of civil rights that could be settled tothe satisfaction of the grievant in “a voluntary and localizedmanner.” See 110 Cong. Rec. 12725 (1964) (remarks of Sen.Humphrey). The section is intended to give state agenciesa limited opportunity to resolve problems of employmentdiscrimination and thereby to make unnecessary, resort tofederal relief by victims of the discrimination. See Voutsisv. Union Carbide Corp., 452 F.2d 889 (CA2 1971). *756Because state agencies cannot even attempt to resolvediscrimination complaints not brought to their attention,the section has been interpreted to require individuals indeferral States to resort to appropriate state proceedingsbefore bringing suit under Title VII. See Love v. Pullman Co.,404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Olson v.

Rembrandt Printing Co., 511 F.2d 1228 (CA8 1975). 3

[4] [5] Since the ADEA and Title VII share a commonpurpose, the elimination of discrimination in the workplace,since the language of § 14(b) is almost in haec verba with §706(c), and since the legislative history of § 14(b) indicatesthat its source was § 706(c), we may properly conclude thatCongress intended that the construction of § 14(b) shouldfollow that of § 706(c). See Northcross v. Memphis Boardof Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37L.Ed.2d 48 (1973). We therefore conclude that § 14(b),like § 706(c), is intended to screen from the federal courtsthose discrimination complaints that might be settled to thesatisfaction of the grievant in state proceedings. We furtherconclude that prior resort to appropriate state proceedings isrequired under § 14(b), just as under § 706(c).

**2072 The contrary arguments advanced by respondentin support of construing § 14(b) as merely optional arenot persuasive. Respondent notes first that under Title VIIpersons aggrieved must file with a state antidiscriminationagency before filing with the Equal Employment OpportunityCommission (EEOC). See 42 U.S.C. § 2000e-5(c). Under

the ADEA, by contrast, grievants may file with state andfederal agencies simultaneously. See 29 U.S.C. §§ 626(d)

and 633(b). 4 From this respondent concludes that theADEA pays less deference to state agencies and that, as aconsequence, ADEA claimants have the option to ignore stateremedies.

*757 [6] We disagree. The ADEA permits concurrentrather than sequential state and federal administrativejurisdiction in order to expedite the processing of age-discrimination claims. The premise for this difference is thatthe delay inherent in sequential jurisdiction is particularlyprejudicial to the rights of “older citizens to whom, bydefinition, relatively few productive years are left.” 113Cong.Rec. 7076 (1967) (remarks of Sen. Javits).

The purpose of expeditious disposition would not befrustrated were ADEA claimants required to pursue stateand federal administrative remedies simultaneously. Indeed,simultaneous state and federal conciliation efforts may wellfacilitate rapid settlements. There is no reason to conclude,therefore, that the possibility of concurrent state and federalcognizance supports the construction of § 14(b) that ADEAgrievants may ignore state remedies altogether.

Respondent notes a second difference between the ADEAand Title VII. Section 14(a) of the ADEA, 29 U.S.C. §633(a), for which Title VII has no counterpart, provides thatupon commencement of an action under ADEA, all stateproceedings are superseded. From this, respondent concludesthat it would be an exercise in futility to require aggrievedpersons to file state complaints since those persons may, afteronly 60 days, abort their involuntary state proceeding byfiling a federal suit.

We find no merit in the argument. Unless § 14(b) is tobe stripped of all meaning, state agencies must be given atleast some opportunity to solve problems of discrimination.While 60 days provides a limited time for the state agency toact, that was a decision for Congress to make and Congressapparently thought it sufficient. As Senator Dirksen told theSenate during the debates on § 14(b)'s predecessor, § 706(c)of Title VII:

“[A]t the local level . . . many cases are disposed of in a matterof days, and certainly not more than a few weeks. *758 In thecase of California, FEPC cases are disposed of in an averageof about 5 days. In my own State it is approximately 14 days.”110 Cong.Rec. 13087 (1964).



Respondent argues finally that a Committee Reportthat accompanied 1978 ADEA amendments supports his

construction of § 14(b). 5 This Committee Report suggestedthat resort to state remedies should be optional under §14(b). See S.Rep.No. 95-493, pp. 6-7 (1978), adopted inJoint 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, pp. 528, 534.

[7] [8] We are not persuaded. Senate Report No. 95-493was written 11 years after the ADEA was passed in 1967,and such “[l]egislative observations . . . are in no sense partof the legislative history.” United Airlines, Inc. v. McMann,434 U.S. 192, 200 n. 7, 98 S.Ct. 444, 449, 54 L.Ed.2d 402(1977). “It is the intent of the Congress that enacted [thesection] . . . that controls.” **2073 Teamsters v. UnitedStates, 431 U.S. 324, 354 n. 39, 97 S.Ct. 1843, 1864,52 L.Ed.2d 396 (1977). Whatever evidence is provided bythe 1978 Committee Report of the intent of Congress in1967, it is plainly insufficient to overcome the clear andconvincing evidence that Congress intended § 14(b) to havethe same meaning as § 706(c). We therefore hold that under§ 14(b) of the ADEA, as under § 706(c) of Title VII, resortto administrative remedies in deferral States by individual

claimants is mandatory, not optional. 6

III

We consider now the consequences of respondent's failureto file a complaint with the Iowa State Civil RightsCommission. Petitioners argue that since Iowa's 120-dayage-discrimination *759 statute of limitations has run,see Iowa Code §§ 601A.14(1), (15) (1975), it is now toolate for respondent to remedy his procedural omission andthat respondent's federal action is therefore jurisdictionallybarred. Respondent pleads that since his failure to file was dueto incorrect advice by the Department of Labor, his tardinessshould be excused.

Both arguments miss the mark. Neither questions ofjurisdiction nor questions of excuse arise unless Congressmandated that resort to state proceedings must be within timelimits specified by the State. We do not construe § 14(b) tomake that requirement. Section 14(b) requires only that thegrievant commence state proceedings. Nothing whatever inthe section requires the respondent here to commence thoseproceedings within the 120 days allotted by Iowa law in orderto preserve a right of action under § 7(c).

We start with the language of the section. Section 14(b)provides, in relevant part, that

“no suit may be brought . . . before the expiration of sixtydays after proceedings have been commenced under the Statelaw, unless such proceedings have been earlier terminated.”29 U.S.C. § 633(b) (emphasis added).

By its terms, then, the section requires only that stateproceedings be commenced 60 days before federal litigationis instituted; besides commencement no other obligation isplaced upon the ADEA grievant. In particular, there is norequirement that, in order to commence state proceedings andthereby preserve federal rights, the grievant must file with theState within whatever time limits are specified by state law.Rather, use of the word “commenced” strongly implies theopposite-that state limitations periods are irrelevant-since, byway of analogy, under the Federal Rules of Civil Procedureeven a time-barred action may be “commenced” by the filingof a complaint. See Fed.Rule Civ.Proc. 3; Magalotti v. FordMotor Co., 418 F.Supp. 430, 434 (ED Mich.1976).

*760 [9] This implication is made express by the lastsentence of § 14(b), which specifically provides:

“If any requirement for the commencement of suchproceedings is imposed by a State authority other than arequirement of the filing of a written and signed statement ofthe facts upon which the proceeding is based, the proceedingshall be deemed to have been commenced for the purposes ofthis subsection at the time such statement is sent by registeredmail to the appropriate State authority.” 29 U.S.C. § 633(b).

State limitations periods are, of course, requirements “otherthan a requirement of the filing of a written and signedstatement of the facts upon which the proceeding is based.”Therefore, even if a State were to make timeliness aprecondition for commencement, rather than follow the moretypical pattern of making untimeliness an affirmative defense,a state proceeding will be deemed commenced for purposesof § 14(b) as soon as the complaint is filed.

**2074 This has been the prevailing interpretation of §14(b). See Nickel v. Shatterproof Glass Corp., 424 F.Supp.

884 (ED Mich.1976); Magalotti v. Ford Motor Co., supra. 7

It is also the prevailing interpretation of § 14(b)'s counterpart,§ 706(c) of Title VII, which contains an identical definitionof commencement. See Davis v. Valley Distributing Co.,522 F.2d 827, 831-833 (CA9 1975), cert. denied, *761 429U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977); Olson



v. Rembrandt Printing Co., 511 F.2d, at 1232; Pinckney v.County of Northampton, 433 F.Supp. 373, 376 n. 1 (EDPa.1976); McAdams v. Thermal Industries, Inc., 428 F.Supp.156, 161 (WD Pa.1977); De Gideo v. Sperry-Univac Co.,415 F.Supp. 227, 229 (ED Pa.1976); see also White v. DallasIndependent School Dist., 581 F.2d 556, 562 n. 10 (CA51978) (en banc) (filing with EEOC tolls state limitationsperiod for federal purposes); Ferguson v. Kroger Co., 545F.2d 1034 (CA6 1976) (EEOC's negligent failure to refercharge to state agency within state limitations period does notforeclose federal claim). But see Richardson v. Miller, 446F.2d 1247 (CA3 1971).

It is also the EEOC's interpretation of § 14(b), see Case No.KC7-5-315, CCH EEOC Decisions (1973) ¶ 6024 (1969), andas such is “entitled to great deference.” Griggs v. Duke PowerCo., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 128(1971).

This construction of the statute is fully consistent with theADEA's remedial purposes and is particularly appropriate “ina statutory scheme in which laymen, unassisted by trainedlawyers initiate the process.” Love v. Pullman Co., 404 U.S.,at 527, 92 S.Ct., at 619.

[10] It is also consistent with the purposes of § 14(b).Section 14(b) does not stipulate an exhaustion requirement.The section is intended only to give state agencies a limitedopportunity to settle the grievances of ADEA claimantsin a voluntary and localized manner so that the grievantsthereafter have no need or desire for independent federalrelief. Individuals should not be penalized if States decline,for whatever reason, to take advantage of these opportunities.See Pacific Maritime Assn. v. Quinn, 465 F.2d 108 (CA91972). Congress did not intend to foreclose federal reliefsimply because state relief was also foreclosed. See Voutsis

v. Union Carbide Corp., 452 F.2d, at 893. 8

*762 [11] The structure of the ADEA reinforces theconclusion that state procedural defaults cannot foreclosefederal relief and that state limitations periods cannot governthe efficacy of the federal remedy. The ADEA's limitations

periods are set forth in explicit terms in 29 U.S.C. §§ 626(d) 9

and **2075 (e), 10 not § 14(b), 29 U.S.C. § 633(b). Sections626(d) and (e) adequately *763 protect defendants againststale claims. We will not attribute to Congress an intentthrough § 14(b) to add to these explicit requirements byimplication 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,

97 S.Ct. 2447, 2457, 53 L.Ed.2d 402 (1977). Congress couldnot have intended to consign federal lawsuits to the “vagariesof diverse state limitations statutes,” ibid., particularly since,in many States, including Iowa, the limitations periodsare considerably shorter than the 180-day period allowedgrievants in nondeferral States by 29 U.S.C. § 626(d)(1). SeeDe Gideo v. Sperry-Univac Co., supra, 415 F.Supp., at 231n.9.

That Congress regarded incorporation as inconsistent withthe federal scheme is made clear by the legislative history of§ 706(c)'s definition of commencement-the same definitionlater used in § 14(b). Proponents of Title VII were concernedthat localities hostile to civil rights might enact shamdiscrimination ordinances for the purpose of frustrating thevindication of federal rights. See 2 B. Schwartz, StatutoryHistory of the United States: Civil Rights 1330 (1970). Thestatutory definition of commencement as requiring the filingof a state complaint and nothing more was intended to meetthis concern while at the same time avoiding burdensomecase-by-case inquiry into the reasonableness of various stateprocedural requirements. Cf. NAACP v. Alabama ex rel.Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488(1958). As Senator Humphrey explained to the Senate:

“[T]o avoid the possible imposition of onerous Staterequirements for initiating a proceeding, subsection (b)provides that to comply with the requirement of prior resortto the State agency, an individual need merely send a writtenstatement of the facts to the State agency by registered mail.”2 Schwartz, supra, at 1352.

The strongest argument against this construction of the statuteis that it would permit grievants to avoid state intervention*764 by waiting until the state statute of limitations has

expired and then filing federal suit, thus frustrating the intentof Congress that federal litigation be used as a last resort.

No reason suggests itself, however, why an employee wouldwish to forgo an available state remedy. Prior resort tothe state remedy would not impair the availability of thefederal remedy, for the two are supplementary, not mutuallyexclusive. A complainant would save no time by bypassingthe state remedy since the federal court must, in any event,defer to the State for 60 days, and is required to defer nolonger. See Davis v. Valley Distributing Co., 522 F.2d 827(CA9 1975); Nickel v. Shatterproof Glass Corp., 424 F.Supp.

884 (ED Mich. 1976). 11



**2076 [12] We therefore hold that respondent mayyet comply with the requirements of § 14(b) by simplyfiling a signed complaint with the Iowa State CivilRights Commission. That Commission must be given anopportunity to entertain respondent's grievance before hisfederal litigation can continue. Meanwhile, the federal suitshould be held in abeyance. If, as respondent fears, his statecomplaint is subsequently dismissed as untimely, respondent

may then return to federal *765 court. 12 But until thathappens, or until 60 days have passed without a settlement,respondent must pursue his state remedy.

Accordingly, the judgment of the Court of Appeals isreversed, and the case is remanded to that Court withinstructions to enter an order directing the District Courtto hold respondent's suit in abeyance until respondent has

complied with the mandate of § 14(b). 13

It is so ordered.

Mr. Justice BLACKMUN, concurring.

My preference in this case would have been to affirm thejudgment of the Court of Appeals. I am so inclined becauseI regard the Age Discrimination in Employment Act to be aremedial statute that is to be liberally construed, and because*766 I feel that an affirmance would give full recognition

to that remedial character. In addition, I could be persuadedthat state procedures and remedies in existence at the timethe Act was passed in 1967 were not particularly helpful forthe complainant and were procedurally frustrating; that thefact that a federal proceeding supersedes one on the state sideindicates which is to be dominant; that ADEA proceedingshave their analogy in Fair Labor Standards Act litigation andnot in Title VII proceedings; that no waiting period is requiredbefore a complainant may resort to a federal remedy (whereas,in striking contrast, under Title VII, state jurisdiction isexclusive for 60 days); that one could reasonably regard thestatute as affording a complainant the option of filing eitheron the state side or on the federal **2077 side, and theconstraints of § 14(b) as applicable only if he pursues thestate remedy; that it seems so needless to require an untimelystate filing that inevitably, and automatically, is to be rejected;that the legislative history of the 1978 amendments, see

ante, at 2072-2073, * while of course not conclusive, mightwell be regarded, because of its positiveness and clarity, asshedding at least some helpful illumination upon persistentand continuing congressional intent in and since 1967; andthat the Government's participation as amicus curiae on the

side of the respondent also affords some indication of theintended interplay of the federal and state legislation.

The court acknowledges that the “question of constructionis close.” Ante, at 2071. But this is one of those casesthat occasionally appears in the procedural area where it ismore important that it be decided (in order to dispel existingconflict, see ante, at 2073, and n.7) than that it be decidedcorrectly.

*767 Inasmuch as I feel that I can live with the Court'sdecision in this case and that, in the long run, justice will notbe denied to anyone possessed of a valid claim, I join theCourt's opinion and its judgment.

Mr. Justice STEVENS, with whom THE CHIEF JUSTICE,Mr. Justice POWELL, and Mr. Justice REHNQUIST join,concurring in part and dissenting in part.

Section 14(b) of the Age Discrimination in EmploymentAct of 1967, 81 Stat. 607, 29 U.S.C. § 633(b), explicitlystates that “no suit may be brought” under the Act until theindividual has first resorted to appropriate state remedies.Respondent has concededly never resorted to state remedies.In my judgment, this means that his suit should not have beenbrought and should now be dismissed.

Throughout this litigation both parties have assumed thatdismissal would be required if § 14(b) is construed to mandateindividual resort to state remedies in deferral States. In Part IIof its opinion, which I join, the Court so construes the statute.However, in Part III of its opinion, the Court volunteers somedetailed legal advice about the effect of a suggested course ofconduct that respondent may now pursue and then orders thathis suit be held in abeyance while he follows that advice.

Regardless of whether the Court's advice is accurate-aquestion that should not be answered until some litigant hasraised it-I am unable to join Part III. If respondent shoulddecide at this point to resort to state remedies, and if hiscomplaint there is found to be time barred, and if he shouldthen seek relief in federal court, the question addressed inPart III of the Court's opinion-whether § 14(b) requires resortto state remedies “within time limits specified by the State”-would then be presented. But that question is not presentednow, and I decline to join or to render an advisory opinion onits merits. I would simply order that this suit be dismissed inaccordance with “the mandate of § 14(b).” Ante, at 2076.



Parallel Citations

99 S.Ct. 2066, 19 Fair Empl.Prac.Cas. (BNA) 1167, 19 Empl.Prac. Dec. P 9216, 60 L.Ed.2d 609

Footnotes* 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 Respondent3 n. 1.

6 This rule, of course, governs only claims for individual relief, such as the present case. Nothing in our decision in anywise disturbsthe 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 therights 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. FordMotor Co., 415 F.Supp. 619 (ED Mich.1976) (timely state complaint not required if state limitations period significantly shorter than180 days). See also Vaughn v. Chrysler Corp., 382 F.Supp. 143 (ED Mich.1974) (timely state complaint not required if claimantdetrimentally relied upon mistaken official advice). Two cases have reached contrary results. See Graham v. Chrysler Corp., 15 FEPCases 876 (ED Mich.1976); McGhee v. Ford Motor Co., 15 FEP Cases 869 (ED Mich.1976).

8 This is made clear by Senator Humphrey's 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 andlocalities did not choose to exercise these opportunities to solve the problem of civil rights in a voluntary and localized manner. Thebasic rights protected by [Title VII] are rights which accrue to citizens of the United States; the Federal Government has the clearobligation to see that these rights are fully protected. In instances where States are unable or unwilling to provide this protection, theFederal 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 thansixty 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 orwithin 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 defendantsin 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 acause 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 soonbecome 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 aregular procedure whereby discrimination complaints are automatically referred to appropriate agencies as soon as they are received.



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 stateagencies 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 byextending their limitations periods to 180 days and by tolling their statutes of limitations upon the filing of a timely charge with theDepartment 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 ofIowa law not for our decision. See Iowa Civil Rights Comm'n v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973).

13 Suspension of proceedings is preferable to dismissal with leave to refile. Respondent's timely complaint has already satisfied therequirements of 29 U.S.C. § 626(e). “To require a second ‘filing’ by the aggrieved party after termination of state proceedings wouldserve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriatein a statutory scheme in which laymen, unassisted by trained lawyers initiate the process.” Love v. Pullman Co., supra, 404 U.S., at526-527, 92 S.Ct., at 619 (charge may be held in suspended animation during deferral period). For this reason, suspension pendingdeferral 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 remandedfor consideration of stay pending deferral); Gabriele v. Chrysler Corp., 573 F.2d 949, 956 n. 18 (CA6 1978); Oubichon v. NorthAmerican 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 ofConference, H.R.Conf.Rep.No.95-950, pp. 7, 12 (1978); U.S.Code Cong. & Admin.News 1978, p. 510.


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


Discharged employee brought action under Ohio law and theAge Discrimination in Employment Act (ADEA), allegingthat he was discharged due to his age. On, inter alia,employer's motion to dismiss or stay, and for preliminaryinjunction or summary judgment, the District Court, Rice,J., held that: (1) employee met requirements of ADEA byfiling action under the ADEA more than 60 days after hisproceedings were commenced with the Ohio Civil RightsCommission; (2) under Ohio law, an age discriminationclaimant who has previously filed a claim with the OhioCivil Rights Commission for purposes of meeting therequirements of the (ADEA) is not precluded from filing anage discrimination action under Ohio statute addressed solelyto age discrimination; and (3) material issues of fact as towhether employee acted under economic duress in executingwaiver of his right to sue employer precluded summaryjudgment.

Motion denied.

West Headnotes (7)

[1] Civil RightsDeferral to state agencies; time

Terminated employee met requirements forbringing of action under the Age Discriminationin Employment Act (ADEA) when the EqualEmployment Opportunity Commission referredthe employee's charge to the Ohio CivilRights Commission (OCRC) to meet thereferral requirements of the ADEA, and theemployee commenced the action under theADEA more than 60 days after proceedings werecommenced with the OCRC. Age Discriminationin Employment Act of 1967, §§ 14, 14(b), 29U.S.C.A. §§ 633, 633(b).


[2] Civil RightsTaxation

Discharged employee who brought action underAge Discrimination in Employment Act wasrequired to file a specific request accompaniedby an affidavit setting forth computation in termsof hours expended, hourly rate and specificreason for which each item of time that wasexpended, on the employee's request that courtaward him reasonable attorney fees in defendingagainst employer's motion to dismiss or stay forfailure to meet jurisdictional requirements. AgeDiscrimination in Employment Act of 1967, §§14, 14(b), 29 U.S.C.A. §§ 633, 633(b).


[3] Civil RightsExistence of other remedies; exclusivity

Election of RemediesActs Constituting Election

Under Ohio law, an age discrimination claimantwho has previously filed a claim with the OhioCivil Rights Commission for purposes of meetingthe requirements of the Age Discrimination inEmployment Act is not precluded from filingan age discrimination action under Ohio statuteaddressed solely to age discrimination. AgeDiscrimination in Employment Act of 1967, § 2et seq., 29 U.S.C.A. § 621 et seq.; Ohio R.C. §4101.17.


[4] ReleaseSufficiency in General

Discharged employee's waiver of his right tosue his employer was supported by adequateconsideration, where, under terms of the waiverexecuted by the employee, the employee wouldserve as a paid consultant to the employerfor a period of five months, during whichtime employer would continue to provide theemployee with health and life insurance.

EXHIBIT "F"




[5] ReleaseReality of assent in general

Discharged employee knowingly waived his rightto sue his employer under the Age Discriminationin Employment Act, where employee believedat time he was discharged it was because of hisage, and employee understood that in executingwaiver he was waiving right to sue employer. AgeDiscrimination in Employment Act of 1967, §§ 2et seq., 14(b), 29 U.S.C.A. §§ 621 et seq., 633(b).

[6] ReleaseDuress

Statements of discharged employee's superiorthat if employee failed to sign waiver to sueagreement employee would receive no additionalcompensation from the employer were notsufficient to support the defense of economicduress, to the validity of the waiver agreement.

[7] Federal Civil ProcedureEmployees and Employment

Discrimination, Actions Involving

Material issues of fact as to whether a dischargedemployee acted under economic duress inexecuting a waiver of his right to sue his employerbecause he feared he would be unable to secureanother job precluded summary judgment infavor of the employer on the employee's actionunder the Age Discrimination in EmploymentAct. Age Discrimination in Employment Act of1967, §§ 2 et seq., 14(b), 29 U.S.C.A. §§ 621 etseq., 633(b).



*528 Charles F. Geidner, Thomas Angelo, III, Dayton,Ohio, for plaintiff.

Neil F. Freund, Dayton, Ohio, Thomas J. Manley, Raleigh,N.C., David M. Duwell, Dayton Power & Light Co., Dayton,Ohio, for defendant.

Opinion

DECISION AND ENTRY OVERRULINGDEFENDANT'S MOTION TO DISMISS OR

STAY (DOC. ## 12); DECISION AND ENTRYOVERRULING DEFENDANT'S MOTION TO

DISMISS COUNT III OF PLAINTIFF'S AMENDEDCOMPLAINT (DOC. # 15); DECISION AND ENTRY

OVERRULING DEFENDANT'S MOTION FORPRELIMINARY INJUNCTION OR SUMMARYJUDGMENT IN PART AND FINDING SAMETO BE MOOT IN PART (DOC. # 19); ORDERSTAYING TRIAL ON PLAINTIFF'S CLAIMS

OF AGE DISCRIMINATION PENDING TRIALON THE QUESTION OF THE VALIDITY OFTHE RELEASE EXECUTED BY PLAINTIFF

RICE, District Judge.

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 Plaintiff's Amended Complaint(Doc. # 15), and for Preliminary Injunction or SummaryJudgment (Doc. # 19). For the reasons briefly set forth below,the Court concludes that Defendant's Motion to Dismissor Stay (Doc. # 12) must be overruled in its entirety;Defendant's Motion to Dismiss Count III of Plaintiff'sAmended Complaint (Doc. # 15) must be overruled in itsentirety; and Defendant's Motion for Preliminary Injunctionor Summary Judgment (Doc. ## 19) must be overruled in partand deemed moot in part.

In his Amended Complaint (Doc. # 10), Plaintiff, ArthurM. Pitts, asserts that “[o]n January 18, 1965, Plaintiff washired as an employee by Defendant where he remaineduntil Plaintiff's employment was terminated by Defendant.His employment was terminated on October 11, 1985 whenhe was forced to resign under duress by Defendant andits agents.” (Doc. # 10, at ¶ 5). Plaintiff further contendsthat “Defendant has arbitrarily, intentionally and willfullydiscriminated against Plaintiff *529 on the basis of his ageconcerning Plaintiff's termination of employment.” (Doc. #10, at ¶ 6). In Count I of his Amended Complaint, Plaintiffasserts that Defendant's actions toward Plaintiff violate 29U.S.C. § 621, et seq. (Doc. # 10, at ¶ 7). Count II of



Plaintiff's Amended Complaint contains Plaintiff's assertionthat Defendant's actions resulted in a breach of contract (Doc.# 10, at ¶ 15). Finally, in Count III of his Amended Complaint,Plaintiff asserts that Defendant's actions towards Plaintiffviolate Ohio Rev.Code § 4101.17 (Doc. ### 10, at ¶ 18).

In its Motion to Dismiss or Stay (Doc. # 12), Defendantasserts that Plaintiff has failed to meet the requirements of§ 14(b) of the Age Discrimination in Employment Act of1967 (ADEA), in that Plaintiff allegedly failed to resort tothe appropriate state remedies prior to filing suit under theADEA. As a result of said failure, Defendant asserts that thisaction must be dismissed or these proceedings must be stayed.

In its Motion to Dismiss Count III of Plaintiff's AmendedComplaint (Doc. ## 15), Defendant asserts that Plaintiff haselected to pursue an administrative remedy with the OhioCivil Rights Commission (OCRC), and thus, as a matter ofOhio law, he is barred from pursuing the judicial remedyprovided by Ohio Rev.Code § 4101.17.

Finally, in its Motion for Preliminary Injunction or SummaryJudgment (Doc. ## 19), Defendant asserts that “[i]n return forvaluable consideration, Plaintiff knowingly and voluntarilyexecuted a contract waiving any and all claims he mighthave against the Defendant arising out of his employment.”Defendant contends that there is no genuine issue of materialfact as to the validity of the agreement signed by Plaintiff andthat Defendant is entitled to enforcement of the agreement asa matter of law. In the alternative, Defendant contends that itis at least entitled to a preliminary injunction until such timeas the validity of the contract can be determined. The Courtwill consider each of Defendant's motions seriatim.

I. DISCUSSION

A. Defendant's Motion to Dismiss or Stay (Doc. # 12)

[1] The Court will first consider Defendant's Motion toDismiss or Stay (Doc. # 12). As previously discussed, in saidmotion Defendant asserts that Plaintiff has failed to meet therequirements of § 14(b) of the ADEA as set forth in 29 U.S.C.§ 633(b).

Section 633(b) of Title 29 of the United States Code providesin pertinent part:

In the case of an alleged unlawfulpractice occurring in a State whichhas a law prohibiting discriminationin employment because of age and

establishing or authorizing a Stateauthority to grant or seek relief fromsuch discriminatory practice, no suitmay be brought under Section 626of this title before the expirationof sixty days after proceedings havebeen commenced under the State law,unless such proceedings have beenearlier terminated....

Basically, Defendant contends that although the state of Ohiodoes have a law prohibiting discrimination in employmentbecause of age and has established a state authority (theOhio Civil Rights Commission (OCRC)) to grant relief,the Plaintiff has failed to commence proceedings with saidauthority. This Court finds Defendant's argument to bewithout merit.

On April 4, 1986, the EEOC referred Plaintiff's EEOC chargeto the OCRC in order to meet the referral requirements of § 14of the ADEA (Doc. # 14, Exh. A). Plaintiff's Complaint in thisaction was not filed until June 12, 1986, more than sixty daysafter proceedings were commenced with the OCRC. Thus,Plaintiff has met the requirements of 29 U.S.C. § 633(b).Accordingly, the Court concludes that Defendant's Motion toDismiss or Stay (Doc. # 12), must be and hereby is overruledin its entirety.

[2] In his Memorandum in Opposition to Defendant'sMotion to Dismiss or Stay (Doc. # 14), Plaintiff assertsthat Defendant's claim regarding Plaintiff's alleged failureto meet the requirements of *530 29 U.S.C. § 633(b) waspatently frivolous and that Defendant continued to prosecutesaid claim even after the EEOC's notice of referral to theOCRC was hand-delivered to defense counsel. As a resultof Defendant's actions in continuing to prosecute said claim,Plaintiff asks this Court to award him reasonable attorney'sfees in defending against Defendant's Motion to Dismissor Stay. If Plaintiff still desires such a sanction, Plaintiffshould file a specific request with this Court accompanied byan affidavit setting forth the computation in terms of hoursexpended, hourly rate and the specific reason for which eachitem of time was expended.

B. Defendant's Motion to Dismiss Count III of Plaintiff'sAmended Complaint (Doc. # 15)

[3] The Court will next consider Defendant's Motion toDismiss Count III of Plaintiff's Amended Complaint (Doc. #15). Basically, Defendant argues that the fact that a chargewas filed on Plaintiff's behalf with the OCRC (pursuant to



Ohio Rev.Code § 4112.05) precludes Plaintiff's claim underOhio Rev.Code § 4101.17. For the reasons briefly set forthbelow, the Court concludes that Defendant's argument iswithout merit.

As noted by the Ohio Supreme Court:

The Ohio statutory scheme concerningdiscrimination is somewhat unusual.Three sections of the RevisedCode provide remedies for age-based employment discrimination.R.C. 4101.17 is addressed solely toage discrimination and allows anaggrieved employee to institute a civilaction in any court of competentjurisdiction. R.C. 4112.02 is a moreinclusive anti-discrimination statuteand also provides a private cause ofaction for age discrimination. Finally,R.C. 4112.05 allows an individual toenforce those rights created by R.C.4112.02 administratively rather thanjudicially by filing a charge withthe OCRC. Each of these avenuesof relief provides that it is exclusiveand, that once an action is institutedthereunder, a plaintiff is barred frombringing an action under either ofthe other two provisions. Thus, Ohio'sstatutory scheme requires an electionfrom among these remedies.

Morris v. Kaiser Engineers, Inc., 14 Ohio St.3d 45, 46,471 N.E.2d 471, 473 (Ohio 1984). Defendant contends thatwhen the EEOC referred Plaintiff's charge to the OCRC, saidreferral constituted a filing under Ohio Rev.Code § 4112.05.In other words, Defendant asserts that Plaintiff elected to seekan administrative remedy under Ohio Rev.Code § 4112.05,and thus, is precluded from seeking a judicial remedy under4101.17. The key issue with regard to this motion is whetheror not a charge filed with the OCRC solely for purposes ofmeeting the requirements of § 14 of the ADEA, precludes aplaintiff from subsequently seeking a judicial remedy underOhio Rev.Code § 4101.17.

While the Ohio Supreme Court has not been faced with thesituation in which a plaintiff first filed with the OCRC (forpurposes of meeting the requirements of the ADEA) and thenfiled suit under § 4101.17 of the Ohio Revised Code, the

Court has dealt with a situation in which a filing pursuantto Ohio Rev.Code § 4101.17 was followed by a filing underOhio Rev.Code § 4112.05. In Morris, the Ohio SupremeCourt held that “[a] claimant who has previously filed anage discrimination action under R.C. 4101.17 is not barredfrom filing a claim with the Ohio Civil Rights Commissionpursuant to R.C. 4112.05 in order to satisfy the mandatoryprerequisite to an action under the federal Age Discriminationin Employment Act.” Id. at 45, 471 N.E.2d at 472 (syllabus)(emphasis added). Thus, while as a general rule, it is truethat “Ohio's statutory scheme requires an election” betweenOhio Rev.Code § 4112.05 and Ohio Rev.Code § 4101.17, theOhio Supreme Court appears to have carved out an exceptionin situations in which the filing under § 4112.05 is merelyintended to meet the requirements of the ADEA. Id. at 46, 471N.E.2d at 473–74. If this Court were to accept Defendant'sposition, an Ohio plaintiff's ability to join state and federalclaims for age discrimination would be solely dependent uponwhether or not the plaintiff first filed his/her state judicialclaim. *531 This Court finds such a distinction to be absurd.

Based upon the foregoing, the Court concludes that iffaced with the issue before this Court, the Ohio SupremeCourt would conclude that a claimant who has previouslyfiled a claim with the OCRC for purposes of meetingthe requirements of the ADEA, is not precluded fromfiling an age discrimination action under Ohio Rev.Code §

4101.17. 1 Based upon the foregoing, the Court concludesthat Defendant's Motion to Dismiss Count III of Plaintiff'sAmended Complaint must be and hereby is overruled in itsentirety.

C. Defendant's Motion for Preliminary Injunction orSummary Judgment (Doc. ## 19)

Finally, the Court will consider Defendant's Motion forPreliminary Injunction or Summary Judgment (Doc. # 19). Insaid motion, Defendant asserts that “[i]n return for valuableconsideration, Plaintiff knowingly and voluntarily executeda contract waiving any and all claims he might have againstthe Defendant arising out of his employment.” (Doc. # 19).Defendant contends that “there is no genuine issue of materialfact and DP & L [therefore] is entitled to enforcement of theagreement as a matter of law.” (Doc. # 19, at 4, n. 2). Forthe reasons briefly set forth below, this Court concludes thatgenuine issues of material fact do exist as to the validity of theagreement, and thus, Defendant is not entitled to enforcement

of the agreement as a matter of law. 2

1. The Applicable Law



Rule 56 of the Federal Rules of Civil Procedure governs thedisposition of motions for summary judgment. Rule 56(c)states in pertinent part:

The [summary] judgment soughtshall be rendered forthwith if thepleadings, depositions, answers tointerrogatories, and admissions on file,together with the affidavits, if any,show that there is no genuine issueas to any material fact and that themoving party is entitled to a judgmentas a matter of law.

The United States Supreme Court has concluded that “theplain language of Rule 56(c) mandates the entry of summaryjudgment, after adequate time for discovery and upon motion,against a party who fails to make a showing sufficient toestablish the existence of an element essential to that party'scase, and on which that party will bear the burden of proof attrial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.2548, 2552, 91 L.Ed.2d 265 (1986). Thus, in the case at bar,this Court must determine whether genuine issues of materialfact exist as to the validity of the agreement allegedly enteredinto between Plaintiff and Defendant.

2. A Brief Overview of Facts

Defendant's Motion for Summary Judgment is based uponthe existence and validity of a waiver executed by Plaintiff.There appears to be no dispute between the parties with regardto certain facts related to the circumstances surrounding theexecution of said waiver. On October 11, 1985, Plaintiff, anemployee of DP & L, was informed of his termination byhis *532 superior, Willie Hall (Doc. # 19, at 2; Doc. # 20,at 1). During his termination interview, Plaintiff was given acopy of the alleged waiver (Doc. # 19, at 2; Doc. # 20, at 2).Plaintiff's termination occurred on a Friday and he was givenat least until the following Monday (October 14, 1985) toreturn the waiver to Mr. Hall (Doc. # 19, at 3; Doc. # 20, at 2).Subsequently, Plaintiff took the waiver home, discussed itsterms with his wife, and signed it (Doc. # 19, at 3; Doc. # 20,at 3). On October 12, 1985, Plaintiff placed the signed waiveron Mr. Hall's desk (Doc. # 19, at 3; Doc. # 20, at 3). Overthe next five months, Plaintiff accepted the funds provided forunder the waiver (Doc. # 19, at 3; Doc. # 20, at 3).

3. The Validity of Plaintiff's Waiver

In determining whether or not the waiver executed by thePlaintiff in this case was in fact valid, the Court must considerthree issues. First, the Court must examine whether or not thealleged waiver was “supported by adequate consideration.”Runyan v. NCR Corp., 573 F.Supp. 1454, 1459 (S.D.Ohio1983) (Runyan I), aff'd, 787 F.2d 1039 (6th Cir.1986),cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d114 (1986). Second, the Court must consider whether ornot the waiver was “knowingly” executed by the Plaintiff.Runyan v. National Cash Register Corp., 787 F.2d 1039,1044 (6th Cir.1986) (Runyan II) cert. denied, 479 U.S. 850,107 S.Ct. 178, 93 L.Ed.2d 114 (1986). The Sixth Circuitsimply does not wish those who have “little education andlittle understanding of their legal rights” to be taken advantageof by a more sophisticated employer. Id. Third, the Courtmust consider whether or not the waiver executed by Plaintiffwas deliberately/voluntarily executed by the Plaintiff. Id. TheSixth Circuit will “not allow employers to compromise theunderlying policies of the ADEA by taking advantage of asuperior bargaining position or by overreaching.” Id. at 1044–45. In other words, a waiver executed under duress is notvalid.

[4] The Court will first consider the question of whetherPlaintiff's waiver “is supported by adequate consideration.”Runyan I, 573 F.Supp. at 1459. In Runyan I, this Courtconcluded that in determining the adequacy of consideration,the Court must consider whether the employee “receivedsomething to which he did not already have an absoluteright.” Id. at 1460. Under the terms of the waiver executed byPlaintiff, Plaintiff would serve as a consultant to Defendantfor a period of five months (Doc. # 19, Pitts' deposition,Exh. 6). During that period, Plaintiff would receive paymentsof $3,054.09 and the Defendant would continue to providePlaintiff with health and life insurance. (Doc. # 19, Pitts'deposition, Exh. 6). The agreement specifically stated that“[i]n consideration for the payments to you mentioned above,this letter agreement will also constitute a complete waiverand release of any and all claims of whatever nature youmight have against the Company arising directly or indirectlyfrom your employment as Supervisor.” (Doc. ## 19, Pitts'deposition, Exh. 6). In this case, the Plaintiff clearly receivedsomething to which “he did not already have an absoluteright.” Id. In the absence of the agreement signed by Plaintiff,Plaintiff would not have had the right to employment asa consultant or to the payments and fringe benefits whichaccompanied said employment.



[5] The Court will next consider whether the Plaintiffknowingly executed the waiver agreement. In consideringwhether the Plaintiff knowingly waived his rights under theADEA, the Court finds several factors to be important. First,the Court notes that at the time Plaintiff executed his waiver,a “bona fide factual dispute” existed between Plaintiff andDefendant as to whether Defendant had violated the ADEA.Runyan II, 787 F.2d at 1044. Plaintiff admits that at thetime that he executed the waiver, he believed that he hadbeen terminated because of his age, and he knew that such atermination was illegal (Doc. # 19, Pitts' deposition, at 56–57). In other words, Plaintiff understood that he did havethe right to sue Defendant. Second, the Court notes thatPlaintiff understood that in executing the waiver, *533 hewas waiving his right to sue the Defendant. Plaintiff admitsthat he knew that the agreement he signed “constituted awaiver of ... [his] claims against the company, includingany age claim.” (Doc. # 19, Pitts' deposition, at 73). Thisadmission is corroborated by the fact that the language of

the agreement signed by Plaintiff was clear. 3 Plaintiff'sadmission is further corroborated by the fact that Plaintiff isa well-educated person who is experienced in the ways of thebusiness world. (Doc. # 19, Pitts' deposition, at 31–36; Doc.# 19, Pitts deposition, Exh. 4). Based upon the foregoing, theCourt concludes that there is no genuine issue of materialfact as to the fact that Plaintiff knew that he had a claim forage discrimination against Defendant and that he knew thatin executing the agreement provided by Defendant, he waswaiving said claim.

Finally, the Court must consider whether or not Plaintiffvoluntarily executed the waiver. As noted by the Sixth Circuit“[i]n determining whether an ADEA settlement and releaseis valid, a court should apply the principles expressed byJustice Frankfurter that encourage ‘amicable settlement ofhonest differences ... where overreaching or exploitation isnot inherent in the situation.’ ” Runyan II, 787 F.2d at 1045.In determining whether or not Plaintiff voluntarily waivedhis rights under the ADEA, this Court must apply ordinarycontract principles. Id. at 1044 n. 10.

When considering the validity of a contract, the Ohio courtshave long recognized the defense of duress. The OhioSupreme Court has recognized that “[t]he real and ultimatefact to be determined in every case is whether the partyaffected really had a choice; whether he had his freedomof exercising his will.” Tallmadge v. Robinson, 158 OhioSt. 333, 340, 109 N.E.2d 496, 500 (1952). Several appellatecourts have recognized the defense of economic duress, or

business compulsion. See Andres v. City of Perrysburg, 47Ohio App.3d 51, 546 N.E.2d 1377; Mastran Associates v.State, slip op., 1987 WL 9489 (Ohio Ct.App. Mar. 31, 1987)(LEXIS; States library; Ohio file); Mancino v. Friedman, 69Ohio App.2d 30, 429 N.E.2d 1181, 1186 (Ohio Ct.App.1980).“[T]he defense of economic duress, or business compulsion,arises where one individual, acting upon another's fear ofimpending financial injury, unlawfully coerces the latterto perform an act under circumstances which prevent hisexercise of free will.” Mancino, 69 Ohio App.2d at 36, 429N.E.2d at 1186 (emphasis added). Thus, in the case at bar,the Court must consider whether there is a genuine issueof material fact as to the following issues. First, whetherin executing the waiver, Plaintiff was acting under fear ofimpending financial injury. Id. at 37, 429 N.E.2d at 1186.Second, whether the Defendant “effectively prevented ...[plaintiff] from exercising his free will in this matter.”Id. Third, whether the method of coercion utilized by theDefendant was unlawful. Id.

Plaintiff asserts that he “was coerced and placed undereconomic duress by Defendant and by the job consultingfirm it hired.” (Doc. # 20, at 7). Plaintiff's claims ofduress are based upon the comments of Mr. Hall duringPlaintiff's termination interview of October 11, 1985, andthe information provided by two job placement consultantsfrom Challenger, Gray and Christmas, who spoke withthe Plaintiff immediately after his termination interview.Plaintiff contends that Mr. Hall placed Plaintiff under duressby informing Plaintiff that if he did not sign the waiveragreement, he would be terminated on October 14, 1985,and would receive no further compensation. Plaintiff furtherasserts that the job placement consultants were acting as theagents of Defendant when they informed the Plaintiff thathe should not call an attorney or initiate a law suit againstDefendant.

*534 [6] The Court first notes that it cannot concludethat the statements of Mr. Hall, the Plaintiff's superior, aresufficient to support the defense of economic duress. Aspreviously discussed, one of the elements of economic duressis unlawful coercion.

“Duress involves illegality, andimplies that a person has beenunlawfully constrained by another toperform an act under circumstanceswhich prevent the exercise of free will,and it can never constitute fraud orduress to do as and what a person



has the legal right to do, whateverthe pecuniary consequences may be tothose with whom he deals.”

Id. at 36, 429 N.E.2d at 1186 (quoting Bartlett v. RichardsonCo., 27 Ohio App. 263, 270–271, 161 N.E. 403 (1927)).Even assuming arguendo, that Mr. Hall did tell Plaintiffthat if he failed to sign the waiver agreement, he wouldreceive no additional compensation from the Defendant,Plaintiff's claim of economic duress is without merit for Mr.Hall's statement was not unlawful. Defendant was simply notobligated to provide Plaintiff with compensation followinghis termination.

[7] While the Court concludes that the statements of Mr.Hall, the Plaintiff's superior, are not sufficient to support adefense of economic duress, the Court concludes that thereare genuine issues of material fact as to whether or notthe statements of the job placement consultants and/or theinformation provided by said consultants are sufficient tosupport a defense of economic duress. There is no disputeas to the fact that the services of the job consultants wereprovided by Defendant. This Court concludes that a genuineissue of material fact does exist as to whether or not theconsultants were acting as the agents of Defendant. ThePlaintiff testified that when he brought up the issue of agediscrimination at his initial meeting with the job placementconsultants, the consultants told him “You should do nothing.If you do anything, you'll never get a job.” (Doc. # 19,Pitts deposition, at 56). Plaintiff further testified that the jobplacement consultants stated “Don't consult an attorney. Just—because if you do, you are dead.” (Doc. ### 19, Pittsdeposition, at 57). It is Plaintiff's contention that when hementioned age discrimination, the job placement consultantssaid “Don't because if—if we get you a job and they consultDayton Power & Light, you are a non-entity.” (Doc. # 19, Pittsdeposition, at 57). With regard to the waiver itself, Plaintifftestified that the job placement consultants indicated to himthat “if you [Plaintiff] don't sign it, you are not going to geta job.” (Doc. ## 19, Pitts deposition, at 62). Plaintiff assertsthat he feared that if he did not sign the waiver, he would notbe able to obtain employment with another firm. (Doc. # 19,Pitts deposition, at 63). The point is, that taken as a whole,the statements which Plaintiff attributes to the job placementconsultants could be construed as a veiled threat of retaliation.

Based upon the evidence on the record, the Plaintiff maywell have executed the waiver because he feared impendingfinancial injury, i.e., the inability to secure another job.Further, it can be reasonably inferred that the Defendanteffectively prevented the Plaintiff from exercising his freewill. In other words, it may reasonably be inferred thatPlaintiff feared that if he took legal action, Defendant wouldretaliate and prevent Plaintiff from getting another job.Finally, if the Defendant was indeed threatening to retaliateagainst Plaintiff for Plaintiff's exercise of his rights under

the ADEA, Defendant's threat was indeed unlawful. 4 Itcan reasonably be inferred from the statements of the jobplacement consultants that any attempt *535 by Plaintiff toenforce his rights would result in attempts by Defendant to

sabotage future employment. 5

Based upon the foregoing, the Court concludes that genuineissues of material fact do exist as to whether or not Plaintiffexecuted the waiver agreement while under economic duress.Accordingly, as this Court cannot conclude that Plaintiff'swaiver was valid as a matter of law, the Court concludesthat Defendant's Motion for Summary Judgment must be

overruled in its entirety. 6

In conclusion, this Court finds that Plaintiff's claims of agediscrimination cannot be considered until the validity ofthe waiver signed by Plaintiff has been determined. As thisCourt has determined that Plaintiff knowingly waived hisright to sue Defendant as a matter of law, the only issueremaining before the Court regarding Plaintiff's waiver isthe issue of duress. The Court had previously set this actionfor trial on January 23, 1989. Trial will indeed begin onthat date, but, solely on the issue of duress. If the juryconcludes that Plaintiff acted under economic duress inexecuting the waiver, trial will be set for Plaintiff's claims ofage discrimination. If, on the other hand, the jury concludesthat Plaintiff did not act under economic duress in executingthe waiver, this action will be terminated upon the docketrecords of the United States District Court for the SouthernDistrict of Ohio, Western Division.

Parallel Citations

53 Fair Empl.Prac.Cas. (BNA) 1762, 56 Empl. Prac. Dec. P40,693

Footnotes



1 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 tobar a plaintiff who went to the EEOC, seeking no remedy from the Ohio Civil Rights Commission, from pursuing a claim undersection 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.” TheSixth 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 claimsagainst Defendant until the validity of the parties' agreement may be finally adjudged (Doc. # 19, at 1). As the Court this day hasdetermined 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 Defendant's 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 andrelease of any and all claims of whatever nature you might have against the Company arising directly or indirectly from youremployment 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 anemployment agency to discriminate against any individual, or for a labor organization to discriminate against any memberthereof or applicant for membership, because such individual, member or applicant for membership has opposed any practicemade 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 wouldharm his future employment prospects. (Doc. # 19, Pitts deposition, at 57). This Court questions how, in the absence of some retaliatoryaction by the Defendant, the mere act of consulting an attorney could possibly harm Plaintiff's 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 Plaintiffagainst Defendant) would be if Defendant told said potential employer of Plaintiff's actions.

6 Defendant asserts that even if the Plaintiff “could prove he signed the release under duress, his subsequent acceptance of the benefitsof the agreement without objection constituted a ratification of the release.” (Doc. # 19, at 13 n. 4). The Court finds this argumentto be without merit. There is no indication that if Plaintiff was in fact under duress when he signed the waiver, he was ever releasedfrom said duress. See generally Doolittle & Chamberlain v. McCullough, 7 Ohio St. 299, 307 (1857). There is no indication that ifPlaintiff feared retaliatory action by Defendant that said fear was ever removed.


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