Bailey v. Container Corp. of America

• Decision Date: 10 January 1985
• Docket Number: Civ. A. No. C-1-84-0878.
• Citation: 594 F. Supp. 629
• Parties: Ralph BAILEY, Plaintiff, v. CONTAINER CORPORATION OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of Ohio

594 F. Supp. 629

Ralph BAILEY, Plaintiff, v. CONTAINER CORPORATION OF AMERICA, Defendant.

Civ. A. No. C-1-84-0878.

United States District Court, S.D. Ohio, W.D.

October 2, 1984.

Opinion on Reconsideration January 10, 1985.

James B. Helmer, Jr., Virginia Conlan Whitman, Ann Lugbill, Cincinnati, Ohio, for plaintiff.

Stephen S. Eberly, Cincinnati, Ohio, for defendant; Dinsmore & Shohl, Cincinnati, Ohio, of counsel.

MEMORANDUM AND ORDER

DAVID S. PORTER, Senior District Judge:

This age discrimination case is before the Court upon defendant's motion to dismiss or strike (doc. 3), plaintiff's response (doc. 5) and defendant's reply (doc. 7). Plaintiff has requested oral argument; however, since we resolve the issues raised in his favor, hearing is unnecessary.

The complaint asserts two causes of action. The first arises under the Age Discrimination in Employment Act, 29 U.S.C. § 626 and related statutes, jurisdiction obtaining under 29 U.S.C. § 626 and 28 U.S.C. § 1331. The second arises under Ohio's age discrimination law, Ohio Rev.Code Ann. § 4101.17 (Page's 1980), jurisdiction obtaining under 28 U.S.C. § 1332, there being diversity of citizenship. Plaintiff also alleges pendent jurisdiction over the state law claim.

Defendant raises a plethora of arguments regarding the propriety of plaintiff's maintaining either of his claims in this forum; we consider them seriatim.

Facts

Plaintiff was a 22-year employee of defendant, a foreign corporation, at one of its Cincinnati, Ohio facilities. He was terminated on July 28, 1982, at which time he was 42 years old. The complaint alleges, and defendant apparently does not dispute, that plaintiff properly filed a timely complaint with the Equal Employment Opportunity Commission more than 60 days prior to filing this action on June 8, 1984.

About a week after the complaint in this case was filed, plaintiff sent notice, by registered mail, of his allegations to the Ohio Civil Rights Commission. That notice informed the OCRC that the complaint herein had been filed, and purported to reserve plaintiff's right to proceed in this Court (doc. 5, Exhibit A).

A. Motion to Dismiss Federal Claim

Ohio is concededly a "deferral State" as that term was used in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2072, 60 L.Ed.2d 609 (1979) in interpreting Section 14(b) of the Age Discrimination in Employment Act, 29 U.S.C. § 633(b). Because that is the case, discriminatees are obliged to seek review of the facts of their case by the relevant State agency. § 633(b) provides that in deferral States, "no suit may be brought under ... this Act before the expiration of 60 days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated ...."

As defendant notes, Oscar Mayer provides that providing deferral states with an opportunity to resolve age discrimination grievances is mandatory and jurisdictional. 441 U.S. at 756-58, 99 S.Ct. at 2071-73. Because that is true, defendant invokes the peculiarities of Ohio's age discrimination laws in an attempt to show that plaintiff is forever barred from prosecuting an ADEA claim. Examination of the Ohio scheme is necessary to develop defendant's claim.

An Ohioan who believes that he or she was a victim of age discrimination has three alternatives: Filing a claim with the OCRC under Ohio Rev.Code Ann. § 4112.05 (Page's 1980); filing a civil action "in a court of competent jurisdiction" under Ohio's general employment discrimination statute, Ohio Rev.Code Ann. § 4112.02(N) (Page's 1980); or filing a civil action based upon the specific age discrimination statute, Ohio Rev.Code Ann. § 4107.17 (Page's 1980).

The difficulty arises from the fact that the legislature made each of these three remedies exclusive. That is, a discriminatee who files a complaint with the OCRC may not sue his employer under either of the statutory provisions, and one who sues under one of the statutory provisions may not gain review of his or her claim by the OCRC, or sue under the other civil-action statute.

Defendant asserts that filing with the OCRC is a prerequisite to filing an ADEA complaint in this Court; that by filing claims based upon Ohio law in this Court, plaintiff has lost his right to file a claim with the OCRC; and that because plaintiff cannot file with the OCRC, he cannot prosecute an ADEA claim.

Whatever the superficial logic of this argument, it is of no legal moment. In Oscar Mayer, 441 U.S. at 759, 99 S.Ct. at 2073, the Court noted that Section 14(b)

requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement no other obligation is placed upon the ADEA grievant. In particular, there is no requirement that, in order to commence state proceedings and therefore preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law.

Because "Congress did not intend to foreclose federal relief simply because state relief was also foreclosed," id. at 761, 99 S.Ct. at 2074, the Court ruled that the plaintiff, who had not proceeded before the State conciliation agency at all, "may yet comply with the requirements of § 14(b) by simply filing a signed complaint" with the agency. Id. at 764, 99 S.Ct. at 2075. "Meanwhile, the federal suit should be held in abeyance." Id.

While acknowledging that there may be differences between a state statute of limitations and the provision under consideration here, we think the similarities between this case and Oscar Mayer render that case clearly controlling. The convolutions of Ohio's statutory scheme are such that plaintiffs who choose to proceed under both federal and state law are forced to do as has this plaintiff. This Court has repeatedly held that the appropriate procedure is for a letter complying with the terms of § 14(b) to be sent to the OCRC after filing of the federal case, with the federal case stayed for 60 days. Perazzo v. Top Value Enterprises, Inc., 590 F.Supp. 428, 432 (S.D.Ohio 1984) (Rice, J.); Merkel v. Scovill, Inc., 570 F.Supp. 133, 137 (S.D.Ohio 1983) (Spiegel, J.); Krenning v. Darling & Co., 572 F.Supp. 923 (S.D. Ohio 1983) (Rubin, C.J.).¹ We see no reason whatsoever to, as defendant urges, "depart from these holdings and to find plaintiff's ADEA claim foreclosed by his choice" to sue under State, as well as federal, law. Since well over 60 days have elapsed since plaintiff sent his letter to the O.C.R.C., we need impose no stay to permit the O.C.R.C.'s processes to proceed.

B. Preemption

Defendant next argues that, "to the extent Ohio law seeks to permit recovery of compensatory and punitive damages by a victim of age discrimination, it is preempted by the ADEA." The rule is that

preemption occurs when compliance with both federal and state regulations is physically impossible, the nature of the subject matter requires federal supremacy and uniformity, or Congress intended to displace state legislation.

Simpson v. Alaska State Commission for Human Rights, 423 F.Supp. 552, 555 (D.Alaska 1976), aff'd, 608 F.2d 1171, 1175 (9th Cir.1979), citing Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-48, 83 S.Ct. 1210, 1217-20, 10 L.Ed.2d 248 (1963). It is clear that compliance with both federal and state law in this instance is not physically impossible; it simply ups the ante. Defendant does not aver that "the nature of the subject matter requires federal supremacy and uniformity," nor could it, given the peaceful coexistence of federal and state regulation of employment discrimination in recent years.

Defendant does, however, suggest that "Congress intended to displace state legislation" on the matter of what damages are available under the ADEA. As defendant poses the matter, if Ohio permits such damages, then the goal of "accomplishment and execution of the full purposes and objectives of an Act of Congress" is frustrated. Doc. 3 at 6, citing Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941) (States may not require aliens to register with State agency in light of Congressional enactments establishing federal registration.)

Defendant refers us to no cases which have so held. Simpson, 423 F.Supp. at 555-56, is the only case to which we are referred which has dealt with the issue at all. There, plaintiff sued under Alaska's age discrimination laws, which provided no cutoff age parallelling that in the ADEA. 29 U.S.C. § 631. Defendant asserts that Simpson "is not ... contrary to its position", doc. 3 at 9, since the court there found "that the state and federal laws were complementary, with no specific conflicts between them." Id.

Before evaluating this contention, we set out the language by which the Simpson court disposed of the preemption argument:

The essence of defendant's attack is based on the theory that the ADEA has preempted state statutes to the extent that such statutes are broader than the federal law. Under this theory any state age discrimination statute would be confined to the ages 40 to 64. Such a construction would affect several other states with employment discrimination statutes using only the term `age' as well as others which specifically delineate limits beyond the federal bounds.

This doctrine of `partial preemption,' if available at all, does not apply to this case. In the field of employment practices states possess broad authority under their police powers and state laws in the field are not easily preempted .... Nothing in the scope or intent of the ADEA indicates that Congress intended to oust the states from this area of concern.

423 F.Supp. at 556 (footnotes and citation omitted; emphasis supplied).²

Defendant asserts, as the sole area of alleged preemption, that the Congressional purpose of seeking agency conciliation of employment discrimination claims is seriously undermined by the potential for punitive damages: "With the promise of a punitive...