Parrish v. Hbo & Co.

• Decision Date: 11 August 1999
• Docket Number: No. C-3-98-370.,C-3-98-370.
• Court: U.S. District Court — Southern District of Ohio
• Parties: James R. PARRISH, Plaintiff, v. HBO & COMPANY, Defendant.

85 F.Supp.2d 792

James R. PARRISH, Plaintiff, v. HBO & COMPANY, Defendant.

No. C-3-98-370.

United States District Court, S.D. Ohio, Western Division.

August 11, 1999.

James M. Hill, O'Diam, McNamee, & Hill Co, Dayton, OH, for James R. Parrish, plaintiff.

Neil Frank Freund, Julie R. Lewis, Freund Freeze & Arnold — 3, Dayton, OH, Jefferson D. Kirby, III, Ann R. Schildhammer, Atlanta, GA, for HBO & Company, defendant.

DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION TO DISMISS COUNTS ONE AND TWO OF PLAINTIFF'S COMPLAINT (DOC. # 3); PLAINTIFF'S SUPPLEMENTAL STATE LAW CLAIMS DISMISSED, WITHOUT PREJUDICE; TERMINATION ENTRY

RICE, Chief Judge.

Plaintiff James Parrish initiated the instant litigation on August 31, 1998 (Doc. # 1). In his Complaint, he asserted four causes of action against Defendant HBO & Company ("HBOC"), to wit: 1) age discrimination, in violation of the Age Discrimination in Employment Act ("ADEA") (Count One); 2) age discrimination, in violation of Chapter 4112 of the Ohio Revised Code (Count Two); 3) a state law claim for breach of his commission agreement (Count Three); and 4) a state law claim for breach of his employment agreement and promissory estoppel (Count Four). Pending before the Court is Defendant's Motion to Dismiss Counts One and Two of Plaintiff's Complaint (Doc. # 3). For the reasons assigned, Defendant's Motion is SUSTAINED.

I. Factual Background

On September 8, 1992, Parrish began employment with HBOC as a sales executive (Complaint ¶ 8). His employment was terminated on September 1, 1995, as part of HBOC's reorganization of its sales force (id. ¶ 10). Parrish filed a complaint with the Ohio Civil Rights Commission ("OCRC") on December 29, 1995, alleging that HBOC's actions constituted age discrimination (id., Ex. A; Doc. # 3, Ex. 2). The Equal Employment Opportunity Commission ("EEOC"), Cincinnati Division, received the complaint on January 3, 1996, and, pursuant to the work-sharing agreement between the OCRC and the EEOC, the charge was to be processed by the EEOC (Doc. # 3, Ex. 3). Due to the location of Defendant's business in Georgia, Plaintiff's complaint was transferred to the Atlanta Office of the EEOC for processing (see Compl., Ex. B). The EEOC issued a Notice of Right to Sue Letter to Parrish on October 31, 1996 (id.).

On January 23, 1997, Plaintiff filed suit in this Court against HBOC. See Case No. C-3-97-35, S.D.Ohio, Western Division at Dayton. In that Complaint, Plaintiff set forth claims for age discrimination, in violation of the Age Discrimination in Employment Act ("ADEA") (Count One) and in violation of Chapter 4112 of the Ohio Revised Code (Count Two); and a state law claim for breach of his commission agreement (Count Three).¹ By stipulation of the parties, that litigation was dismissed, without prejudice, pursuant to Fed.R.Civ.P. 41(a)(1), on July 31, 1998 (Case No. C-3-97-35, Doc. # 36). Parrish filed the instant litigation on August 31, 1998, thirty-one days after the voluntary dismissal of his first suit (Doc. # 1). On October 30, 1998, Defendant filed the instant Motion to Dismiss Count One, pursuant to Fed.R.Civ.P. 12(b)(6), and Count Two, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. # 3).

II. Standard for Defendant's Motion to Dismiss, Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. # 3)²

When considering a motion to dismiss pursuant to Rule 12(b)(6), the court must "construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.) (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993)), cert. denied, 519 U.S. 1008, 117 S.Ct. 510, 136 L.Ed.2d 400 (1996); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997), cert. denied, 523 U.S. 1075, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998) ("In considering a motion to dismiss for failure to state a claim, the Court is required to take as true all factual allegations in the complaint."); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1025 (6th Cir.1990), cert. denied, 498 U.S. 1086, 111 S.Ct. 961, 112 L.Ed.2d 1048 (1991). However, the Court need not accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). A well-pleaded allegation is one that alleges specific facts and does not merely rely upon conclusory statements. The Court is to dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

III. Analysis of Defendant's Motion to Dismiss (Doc. # 3)

A. State Law Claim of Age Discrimination (Count Two)

Defendant seeks dismissal of Plaintiff's claim for age discrimination, in violation of Ohio Rev.Code Ch. 4112, arguing that Parrish's claim is barred by Ohio Rev. Code § 4112.08, which provides, in pertinent part, that "... any person filing a charge under division (B)(1) of section 4112.05 of the Revised Code is, with respect to the unlawful discriminatory practices complained of, barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code." Ohio Rev.Code § 4112.08; Smith v. L.M. Berry & Co., 654 F.Supp. 11, 14 (S.D.Ohio 1986) ("[A]n individual who files a charge with OCRC is barred from bringing a civil action under either Section 4101.17 [now § 4112.14] or Section 4112.02(N)."). HBOC further argues that, even if Parrish could bring suit in this Court, his claim is time-barred, because he did not file his lawsuit within 180 days after the alleged unlawful discrimination practice occurred, as required by Ohio Rev.Code § 4112.02(N).³ In his Memorandum In Opposition to Defendant's Motion (Doc. # 17), Plaintiff responds that, upon further research, he agrees to the dismissal of his state law age discrimination claim. Accordingly, without further discussion, the Court SUSTAINS Defendant's Motion to Dismiss Plaintiff's state law age discrimination claim (Count Two).

B. Federal Claim of Age Discrimination (Count One)

HBOC seeks dismissal of Parrish's ADEA claim on the ground that the claim was not timely filed. Specifically, Defendant contends that, although Plaintiff's original lawsuit was filed within the 90-day statutory filing period, the instant litigation is time-barred, because it was filed after that filing period had expired. Defendant further argues that the Ohio savings statute does not operate to toll the statutory limitations period, because Congress provided for a federal statute of limitations for this federal claim. Plaintiff responds that his ADEA claim is timely due to the tolling provisions set forth in 28 U.S.C. § 1367(d). Furthermore, he argues that the Ohio saving statute, Ohio Rev.Code § 2305.19, is applicable, because it has been incorporated into section 1367(d). As discussed below, the Court concludes that § 1367(d) does not apply to the present circumstances. Defendant's Motion to Dismiss Count One is, accordingly, SUSTAINED.

Under the ADEA, a complainant has ninety days from the date of the receipt of a notice of the right to sue to initiate a civil action against the respondent. 29 U.S.C. § 626(e).⁴ The EEOC issued a Notice of Right to Sue Letter to Parrish on October 31, 1996. Plaintiff initially filed suit against HBOC on January 23, 1997, within the ninety-day filing limitations period. The instant litigation was filed on August 31, 1998, well beyond the expiration of the statutory filing period. "If a plaintiff in possession of a right-to-sue letter files suit within [the statutory filing] period, but later dismisses the lawsuit without prejudice, courts will regard that plaintiff as never having filed that suit and will not toll the statutory filing period." Clark v. Nissan Motor Mfg. Corp. U.S.A., 1998 WL 786892 at *3 (6th Cir. Oct. 26, 1998) (Title VII), citing Wilson v. Grumman Ohio Corp., 815 F.2d 26, 27 (6th Cir.1987). Accordingly, Plaintiff's pending ADEA claim is untimely filed, unless a statute operates to toll the filing period. Wilson, 815 F.2d at 27 ("It is generally accepted that a dismissal without prejudice leaves the situation the same as if the suit had never been brought, and that[,] in the absence of a statute to the contrary [,] a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending.") (emphasis added).

Plaintiff argues that Congress, by the enactment of 28 U.S.C. § 1367, has provided such a means to toll the ADEA statutory filing limitations period. That statute provides, in pertinent part:

(d) The period of limitations for any claim asserted under subsection (a),⁵ and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

28 U.S.C. § 1367(d). Plaintiff argues that § 1367(d) operates to toll the filing deadlines under the ADEA, because he voluntarily dismissed, on July 30, 1998, a supplemental claim, brought pursuant to § 1367(a), and his ADEA claim was voluntarily dismissed at the same time as that supplemental claim. As discussed below, the Court disagrees that § 1367(d) operates when the supplemental claim is refiled in federal court, as opposed to state court, and when it is voluntarily dismissed, pursuant to Fed.R.Civ.P. 41(a), as opposed to having been dismissed by the court, pursuant to § 1367(c).

Numerous authorities have recognized that the purpose of § 1367(d) was to ensure that plaintiffs did not lose their...