Kohn v. GTE North, Inc., C2-88-0066.

• Decision Date: 05 December 1990
• Docket Number: No. C2-88-0066.,C2-88-0066.
• Citation: 754 F. Supp. 563
• Parties: Jayne Irene KOHN, Plaintiff, v. GTE NORTH, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

754 F. Supp. 563

Jayne Irene KOHN, Plaintiff, v. GTE NORTH, INC., Defendant.

No. C2-88-0066.

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

December 5, 1990.

Jinx Statler Beachler, Columbus, Ohio, for plaintiff.

Joseph Richard Stewart, Marion, Ohio, for defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This matter is before the Court upon Plaintiff Jayne Irene Kohn's motion for a partial summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff asks the Court to order that she has timely commenced this employment discrimination suit and satisfied all jurisdictional prerequisites thereto. In response the Defendant, GTE North Incorporated, has filed with this Court a Memorandum Contra Motion to the Partial Summary Judgment. This case was brought through a Complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (ADEA), and retaliation in violation of both Title VII and ADEA.

FACTS

Plaintiff, Irene Kohn, was an employee of GTE in Centerville, Ohio. For 34 years she held the position of Service Facility Manager. The events and acts which resulted in this action began in August 1986. At that time plaintiff complained to G. Daniel Boone, defendant's Division Manager, that she believed she was being discriminated against. Plaintiff complained that she believed her wages had been frozen while the wages of other workers had not.

The acts and actions then taken by plaintiff and defendant are presented in chronological order as follows:

September 9, 1986 — Plaintiff is informed by Mr. Boone that she is to be transferred to the Marion, Ohio facility of defendant in the new position of Operator Services Manager.

February 17, 1987 — Plaintiff files her first charge with the Ohio Civil Rights Commission (OCRC) based on age/sex/retaliation #22 A-87-4250. (exhibit A)

April 9, 1987 — Plaintiff is informed by James Black, defendant's Placement Supervisor, that her new position in Marion, Ohio will be eliminated in November, 1987.

June 29, 1987 — Plaintiff files her second charge with the OCRC based on age and retaliation # 22 A-87-4523. (exhibit B)

September 4, 1987 — Plaintiff is informed she is being terminated as of November 20, 1987.

September 8, 1987 — Plaintiff amends her June charge with the OCRC # 22 A-87-4523, based on age and retaliation. (exhibit C)

November 20, 1987 — Plaintiff is terminated from her employment with defendant GTE.

December 3, 1987 — Plaintiff again amends her June charge with the OCRC # 22 A-87-4523, based on age/sex/retaliation. (exhibit D)

January 19, 1988 — Plaintiff commences this action by filing a Complaint.

March 3, 1988 — Plaintiff receives two (2) "right to sue" notices from the Equal Employment Opportunity Commission (EEOC). (exhibits H and I)

May 4, 1988 — Plaintiff amends her January Complaint to include her receipt of the "right to sue" notices from the EEOC.

The defendant answers plaintiff's May 4, 1987, amended complaint by raising three affirmative defenses:

1. Plaintiff failed to exhaust administrative remedies.

2. Plaintiff's claims are barred by applicable statutes of limitations.

3. This court lacks jurisdiction over plaintiff's sex discrimination claims because plaintiff has not received a right to sue letter.

Plaintiff has responded to defendant's three affirmative defenses by denying each as being frivolous and without substance.

It is with these facts, allegations, and dates in mind that the Court now looks to the plaintiff's motion for partial summary judgment and three affirmative defenses raised by defendant.

STANDARD OF REVIEW

In considering this motion, the Court is mindful that the standard for summary judgment "mirrors the standard for a directed verdict under Rule 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) citing Brady v. Southern Ry. Co., 320 U.S. 476, 479-480, 64 S.Ct. 232, 234-235, 88 L.Ed. 239 (1943). Thus, the Supreme Court concluded in Anderson that a judge considering a motion for summary judgment must "ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair minded jury could return a verdict for the plaintiff on the evidence presented." 477 U.S. at 252, 106 S.Ct. at 2512.

Rule 56(c) of the Federal Rules of Civil Procedure provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In essence, the inquiry is whether the evidence presented a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Such an inquiry necessarily implicates the evidentiary standard of proof that would apply at the trial on the merits. As a result, the Court must view the evidence presented through the prism of the substantive evidentiary burden. Rule 56(e) therefore requires that the nonmoving party go beyond the pleadings and by their own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552.

In Banks v. Rockwell International N. Am. Aircraft Operations, 666 F.Supp. 1053 (S.D.Ohio 1987) (J. Graham), this district enunciated the importance of granting summary judgments in appropriate situations by stating that: "Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed to secure the just, speedy and inexpensive determination of every action." citing, Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553, (quoting Fed.R.Civ.P. 1); Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Thus, the mere existence of a scintilla of evidence in support of a plaintiff's claim is insufficient — there must be evidence upon which a jury could reasonably find for the plaintiff. Having discussed the Rule 56 standard of review, the Court now turns to the merits.

ADMINISTRATIVE REMEDIES

Defendant claims plaintiff did not file her December 3, 1987 amendment with the EEOC and that as a result, this Court lacks subject matter jurisdiction with respect to the complaint filed on January 19, 1988. Further, defendant states that plaintiff's December 3rd amendment could not be filed with the EEOC until sixty (60) days after being filed with the OCRC. Defendant asserts that plaintiff failed to file her Title VII and ADEA charges separately with both the OCRC and the EEOC.

In Ohio, in order to facilitate filing requirements of 42 U.S.C. § 2000e-5(c), the OCRC and the EEOC have a cooperative agreement which provides for automatic referral of a charge filed with a state agency to the EEOC and vice versa. See 29 C.F.R. §§ 1601.13, 1626.7 and 1686.9. Specifically, as the charge relates to Title VII relief, 29 C.F.R. § 1601.13(b) provides:

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(b) Initial presentation of a charge to a 706 Agency. (1) When a charge is initially presented to a 706 Agency and the charging party requests that the charge be presented to the Commission, the charge will be deemed to be filed with the Commission upon expiration of 60 (or where appropriate, 120) days after a written and signed statement of facts upon which the charge is based was sent to the 706 Agency by registered mail or was otherwise received by the 706 Agency, or upon the termination of 706 Agency proceedings, or upon waiver of the 706 Agency's right to exclusively process the charge, whichever is earliest. Such filing is timely if effected within 300 days from the date of the alleged violation.

The charges filed herein requests the forwarding of the matter to the EEOC. So as seen above, the charge would have been deemed to have been filed with the EEOC 60 days after the initial filing with the OCRC (Emphasis Added).

Defendant correctly reads 42 U.S.C. § 2000e-5(c) which requires a waiting period of 60 days after filing with the appropriate state agency before filing with the EEOC, unless the state agency has acted prior to the end of the 60 day period. Yet, defendant misses the issue regarding the December 3, 1987 amendment. The initial charge within this matter was filed on June 29, 1987. Two amendments followed, those being September 8, 1987, and December 3, 1987, respectively. While it is true that initial charges must follow the prescribes of 29 C.F.R. § 1601.13(b) in order to follow the prerequisites of 42 U.S.C. § 2000e-5(c) amendments may be handled differently. For Example, 29 C.F.R. § 1601.12(b) specifically addresses amendments and states:

§ 1601.12 Contents of charge; amendment of charge.

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(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts

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