Merhulik v. Weltman, Weinberg & Reis Co.

• Decision Date: 07 December 2020
• Docket Number: CASE NO. 1:20 CV 1188
• Court: U.S. District Court — Northern District of Ohio
• Parties: KATHERINE MERHULIK f.k.a., KATHERINE LEEDS, Plaintiff, v. WELTMAN, WEINBERG & REIS CO., LPA, Defendant.

KATHERINE MERHULIK f.k.a., KATHERINE LEEDS, Plaintiff, v. WELTMAN, WEINBERG & REIS CO., LPA, Defendant.

CASE NO. 1:20 CV 1188

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

December 7, 2020

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss filed by Defendant, Weltman, Weinberg & Reis Co., LPA ("WWR"). (Docket #10.)

I. Factual Allegations and Procedural History.

As alleged in the Complaint, the facts of this case are follows:

Plaintiff, Katherine Merhulik, was employed by WWR from July 13, 2009 through September 1, 2016. Ms. Merhulik began her employment with WWR as a Legal Collector and, on November 24, 2012, was promoted to the position of Quality Assurance Telephone Monitor, a position which was later renamed Quality Assurance Specialist. (Complaint at Paragraphs 8-14.) Ms. Merhulik alleges she was an exemplary employee; was well-qualified and educated in this area of work; and, received a raise and multiple awards from WWR during her employment. (Id.)

On September 1, 2016, was informed by WWR that her position was being downsized and that her employment, along with the employment off 22 others, was to be terminated due to a reduction in force ("RIF"). (Id. at Paragraph 16.) Ms Merhulik was 59 years old at the time. (Id.) Ms. Merhulik's job duties were redistributed to the remaining employees in her Department who were ages 44, 49 and 50. (Id. at Paragraph 18.) Mr. Merhulik alleges that she was not offered lesser collector positions upon termination, despite being qualified, and that those positions went to other employees outside of the protected class instead of termination. (Id. at Paragraph 19.)

Ms. Merhulik alleges that when she was terminated, WWR used scorecards to rank employees in order to determine which employees would be terminated and that those scorecards unlawfully included "age" as a factor. (Id. at Paragraph 20.) Ms. Merhulk alleges that WWR's "workforce reduction practices or process of using scorecards with age of employees stated had a demonstrable effect of discriminating against employees on the basis of age" and disproportionately resulted in the termination of employees over 40. (Id. at Paragraph 34.)

On February 27, 2017, Ms. Merhulik filed a lawsuit against WWR in the Cuyahoga County Court of Common Pleas, Leeds v. Weltman, Weinberg & Reis Co., L.P.A., Cuyahoga County Case No. CV 17 876521, asserting claims of age discrimination and wrongful termination in violation of Ohio Public Policy, which was amended on April 17, 2017. (Complaint at Paragraph 31.) That lawsuit was dismissed on October 18, 2018 "due to a death in the family of one of Plaintiff's trial counsel and the unwillingness of the state trial court to continue the trial date." On October 9, 2020, Ms. Merhulik refiled her claims in the Cuyahoga County Court of Common Pleas, Leeds v. Weltman, Weinberg & Reis Co., L.P.A., Case No. CV 19-922944. That case remains pending and is set for trial. (Id. at Paragraphs 42-43.)

In January 2018, WWR posted two job openings for Collections Specialist. (Complaint at Paragraphs 46-50.) Ms. Merhulik applied for both and states that although she was qualified, she was never contacted by WWR regarding either position. (Id. at Paragraphs 48 and 52.) Ms. Merhulik states that there are currently more than five job postings for Collection Specialist with WWR and that "some of these job postings are worded to intentionally seek out younger applicants," reading "are you looking to start your career in the Legal field." (Id. at Paragraphs 53 and 54.) Ms. Merhulik alleges that WWR hired several other job candidates for the second of the two job posting who were less qualified and not in the protected age class, and that other positions continue to remain open. (Id. at Paragraphs 65 and 66.) Ms. Merhulik asserts that WWR "failed to train employment decision makers on how to avoid an adverse impact on workers over the age of 40 in implementing an employment practice or decision" and "failed to perform any statistical analysis when using or implementing employment practices and decisions." (Id. at Paragraphs 56 and 57.)

On October 23, 2018, Ms. Merhulik filed a Charge with the Cleveland Field Office of the Equal Employment Opportunity Commission, Charge No. 532-2019-00136C, against WWR alleging age discrimination and retaliation, stating as follows:¹

I worked for respondent until I was laid off in September 2016. I filed a law suit regarding Age discrimination. I applied for an open position as a debt collector on January 22, 2018.

I believe I was not interviewed in retaliation for filing a law suit. I was not interviewed for the open position and I have thirty years experience some ofwhich I got while working for respondent. I believe respondent hired a less qualified and younger candidate than me.

I believe I have been discriminated and retaliated against due to my age (61) in violation of the Age Discrimination in Employment Act of 1967, as amended ADEA.

(Complaint at Paragraphs 69-70.)

Ms. Merhulik states that on January 10, 2020, WWR filed its position statement in response to the EEOC Charge, which did not include the names, qualifications, applications or resumes of any of the other applicants for the two WWR job postings. (Id. at Paragraph 71.) Ms. Merhulik states that she was provided no evidence from the EEOC file and, on March 4, 2020, the EEOC closed its Charge file and issued Plaintiff a Right to Sue letter. (Id. at Paragraph 72.)

Ms. Merhulik filed her lawsuit in this Court on May 29, 2020, alleging the following claims:

• Unlawful Intentional Age Discrimination (Disparate Treatment) in Violation of the ADEA, 29 U.S.C. § 621, et seq. (Count One), alleging WWR failed to consider her for the open positions WWR posted in January 2018 for which she was qualified and for which two less-qualified individuals under age 40 were allegedly hired;

• Unlawful Use of Hiring Criteria Having Disparate Impact on Applicants Over 40 Years of Age in Violation of the ADEA, 29 U.S.C. § 621 et seq., (Count Two), alleging WWR used age as a factor in screening and considering applicants for employment which has a disparate impact on Ms. Merhulik and other qualified applicants over the age of 40;

• Unlawful Retaliation in Violation of the ADEA, 29 U.S.C. § 623(d) (Count Three), alleging WWR "failed to interview [her] and consider her excellent credentials for the 'Collections Specialist' positions" she applied for in January 2018 in retaliation for the State Court lawsuit she had previously filed against WWR;

• Unlawful Retaliation in Violation of Title VII, 42 U.S.C. § 2000e-3(a) (Count Four), alleging WWR took adverse employment action against her by failing to interview her and consider her excellent credentials for the open jobs at WWRbecause she opposed WWR's alleged unlawful employment practices of recruiting and hiring on the basis of age;

• Age Discrimination (Disparate Treatment) in Violation of Ohio Rev. Code §§ 4112.02 et seq. and 4112.99 (Count Five), alleging that Defendant's refusal to hire or interview her for the open positions in January 2018 was based on her age and constitutes disparate treatment;

• Age Discrimination (Disparate Impact) in Violation of Ohio Revised Code §§ 4112.02 et seq. and 4112.99 (Count Six), alleging WWR has a history and practice of using age as a determinative factor in employment decisions and that the alleged unlawful practice caused WWR to hire younger applicants who were not in the protected class to fill the open jobs for which she applied and was more qualified;

• Retaliation in Violation of Ohio Rev. Code §§ 4112.02 et seq. and 4112.99 (Count Seven), alleging WWR retaliated against her for filing the State Court Action by failing to interview or consider her excellent credentials for the open posted positions in January 2018.

On August 13, 2020, WWR filed its Motion to Dismiss Counts II, IV, V and VI of the Complaint. (Docket #10.) Ms. Merhulik filed her Opposition Brief on September 11, 2020 (Docket #13) and WWR filed a Reply Brief on September 25, 2020 (Docket #15). WWR's Motion to Dismiss is fully briefed and ripe for review.

II. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a defendant to test the legal sufficiency of a complaint without being subject to discovery. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6^th Cir. Ohio 2003). In evaluating a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, accept its factual allegations as true, and draw reasonable inferences in favorable of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6^th Cir. Ky. 2007). The court will not, however, accept conclusions of law or unwarranted inferences cast in the form of factual allegations. See Gregory v. ShelbyCounty, 220 F.3d 433, 446 (6^th Cir. Tenn. 2000).

In order to survive a motion to dismiss, a complaint must provide the grounds of the entitlement to relief, which requires more than labels, conclusions, and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted); see Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545 548, at *2 (6^th Cir. Ohio Sept. 25, 2007) (recognizing that the Supreme Court "disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)"). Accordingly, the claims set forth in a complaint must be plausible, rather than conceivable. See Twombly, 127 S. Ct. at 1974.

On a motion brought under Rule 12(b)(6), the court's inquiry is limited to the content of the complaint, although...