Pater v. Health Care and Retirement Corp.

• Decision Date: 05 November 1992
• Docket Number: No. C-1-92-348.,C-1-92-348.
• Citation: 808 F. Supp. 573
• Parties: Rebecca S. PATER, Plaintiff, v. HEALTH CARE AND RETIREMENT CORPORATION, d/b/a Oak Pavilion Nursing Home and Sherriann Wood, Defendants.
• Court: U.S. District Court — Southern District of Ohio

808 F. Supp. 573

Rebecca S. PATER, Plaintiff, v. HEALTH CARE AND RETIREMENT CORPORATION, d/b/a Oak Pavilion Nursing Home and Sherriann Wood, Defendants.

No. C-1-92-348.

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

November 5, 1992.

Randolph Harry Freking, Freking & Betz, Cincinnati, OH, for plaintiff.

Charles Matthew Roesch, Dinsmore & Shohl, Cincinnati, OH, for Health Care & Retirement Corp.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

SPIEGEL, District Judge.

This matter is before the Court on the Defendants' Motion to Dismiss (doc. 5), the Plaintiff's Response (doc. 10), the Plaintiff's Notice of Supplemental Authority (doc. 11), and the Defendants' Reply to the Plaintiff's Response and Supplemental Authority (doc. 13).

BACKGROUND

The Plaintiff, Rebecca Pater, was employed by the Defendants as an administrator for the Defendants' Oak Pavilion Nursing Home in Cincinnati. According to the Plaintiff, she received satisfactory performance evaluations throughout the entire time of her employment with the Defendants. During the summer of 1991, the Plaintiff developed a disabling medical condition, but claims that she was able to continue working competently. According to the Plaintiff, in September of 1991, she was forced to take an involuntary, and unnecessary medical leave of absence. Plaintiff was terminated in October of 1991, and replaced by a younger, less experienced woman. The Plaintiff, age forty-seven, is a member of the age group protected by state and federal age discrimination statutes, her replacement, age twenty, is not.

The Plaintiff claims that she was terminated based on her age and a perceived physical handicap, and that she has suffered severe emotional distress as a result of the Defendants' conduct. She further claims that the termination violated an implied contract of employment and that she has suffered as a result of the Defendants' false and defamatory statements. Finally, the Plaintiff claims that her dismissal was in violation of the Older Workers Benefit Protection Act, and thus, in breach of public policy under Ohio law.

The Plaintiff filed her age and handicap claims with the Ohio Civil Rights Commission ("OCRC"), before bringing this suit in federal Court. According to the Plaintiff, she pursued this path for the sole purpose of vesting this Court with subject matter jurisdiction as required by the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633.

The Plaintiff brings this suit alleging: 1) age discrimination under Section VII of the ADEA, 29 U.S.C. § 626 et seq. (Count I), and Ohio Rev.Code §§ 4101.17 and 4112.99 (Count II); 2) handicap discrimination under Ohio Rev.Code §§ 4112.01(A)(13) and 4112.99 (Count III); 3) wrongful discharge in violation of an implied contract of employment (Count IV); 4) intentional infliction of emotional distress (Count V); 5) defamation (Count VI); and 6) violation of public policy (Count VII). The Plaintiff maintains that this Court has jurisdiction by virtue of the federal age discrimination statute, and pendant jurisdiction over the state claims.

The Defendants have moved to dismiss Counts II, III, IV, V and VII, under Fed. R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, and Counts II, III, IV, V, VI and VII, under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The Defendants claim, among other things, that under the Ohio Revised Code, the state age and handicap provisions provide for exclusive remedies. Thus, by filing her age and handicap discrimination claims with the OCRC before pursuing state judicial remedies, the Plaintiff had "elected" to pursue administrative remedies. By virtue of this election, the Defendants maintain, the Plaintiff is barred from pursuing the state age and handicap claims under Ohio Rev.Code §§ 4101.17, 4112.01(A)(13) and 4112.99, and the Court should therefore, dismiss the state age and handicap claims in Counts II and III, for failure to state a claim upon which relief can be granted.

We conclude that it is appropriate to exercise pendant jurisdiction over all claims with the exception of the wrongful discharge claim (Count IV). Furthermore, we hold that the Plaintiff has stated a claim upon which relief can be granted for her state age and handicap claims under section 4112.99 of the Ohio Revised Code (Counts II and III), as well as her intentional infliction of emotional distress and public policy claims (Counts V and VII).

DISCUSSION

I. PENDANT JURISDICTION

The Defendant has moved the Court to dismiss the Plaintiff's claims in Counts II through VII under Fed.R.Civ.P. 12(b)(1). The district court may exercise pendant jurisdiction, at its discretion, when the state and federal claims derive out of a common nucleus of operative facts. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1965); Aschinger v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th Cir.1991). If Considering the claims "without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in the federal courts to hear the whole." United Mine Workers, 383 U.S. at 725, 86 S.Ct. at 1138 (emphasis in original) (footnote omitted); Aschinger, 934 F.2d at 1412. Furthermore, among the factors the district court should consider in determining weather to exercise pendant jurisdiction, are judicial economy, convenience, and fairness to the litigants. McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir.1985).

A) DEFENDANT'S 12(b)(1) MOTION REGARDING COUNT IV SHOULD BE GRANTED

We agree with the Defendants that the Court should not exercise pendant jurisdiction over the Plaintiff's wrongful discharge claim (Count IV). The facts that will be developed with respect to the ADEA claim differ significantly from those regarding the state wrongful discharge claim. Principal among the divergent facts which will have to be developed with respect to the contract claim are: whether there in fact existed a contract or whether this was an employment-at-will as stated on the employment agreement, what exactly were the terms of the contract if one did in fact exist, and whether the Defendant breached the contract. We therefore hold, that this claim does not derive out of a "common nucleus of operative facts" and thus, pendant jurisdiction over this claim would be inappropriate. See United Mine Workers, 383 U.S. at 725, 86 S.Ct. at 1138; Aschinger, 934 F.2d at 1412.

B) DEFENDANT'S 12(b)(1) MOTION REGARDING COUNTS II, III, V, VI AND VII SHOULD BE DENIED

In contrast to our conclusion regarding Count IV discussed above, the Plaintiff's claims in Counts II (state age discrimination), III (handicap discrimination), V (intentional infliction of emotional distress), VI (defamation) and VII (violation of public policy), do stem from a common nucleus of operative facts. It is therefore inappropriate to dismiss them for lack of subject matter jurisdiction. The facts involved in determining liability under the ADEA claim are so related to those involved in the state age and handicap discrimination claims, as well as the intentional infliction of emotional distress, defamation and public policy violation claims, that pendant jurisdiction over these claims is appropriate. See United Mine Workers, 383 U.S. at 725, 86 S.Ct. at 1138; Aschinger, 934 F.2d at 1412.

Furthermore, we reject the Defendants' assertion that evidence establishing the state age claims will improperly "spillover" to the jury's consideration of ADEA liability. See Defendants' Motion to Dismiss Doc., 5, at 10. The Court will be able to adequately instruct the jury so as to avoid any possible confusion with respect to the separate claims which may arise. Thus, considering the common nature of the facts to be developed, as well as judicial economy and fairness to the litigants, we hold that it is within our discretion to exercise pendant jurisdiction over these claims. McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir.1985).

II. SUFFICIENCY OF PLAINTIFFS' CLAIMS

The Defendants have also moved the Court to dismiss the Plaintiff's claims in Counts II, III IV, V and VII under Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On a motion to dismiss, the Court must construe all matters in the light most favorable to the party opposing the motion. Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir.1983). Furthermore, the Court must accept as true all allegations in the well pleaded complaint under attack. Id. The Court may grant the motion only "if it appears that Plaintiffs can prove no set of facts in support of their claims which would entitle them to relief." Balderaz v. Porter, 578 F.Supp. 1491, 1494 (S.D.Ohio 1983).

A) OHIO REV.CODE § 4112.99 IS NOT AN EXCLUSIVE REMEDY THUS PRIOR FILING WITH OCRC DOES NOT BAR PLAINTIFF FROM PURSUING STATE AGE AND HANDICAP CLAIM UNDER THAT SECTION

The Defendants claim that the Ohio legislature's statutory scheme for bringing an age discrimination claim requires a plaintiff to make an election of remedies. Thus, according to the Defendants, when an employee files a charge with the OCRC alleging age discrimination before she initiates a private civil action joining federal and state age claims, she is prevented by Ohio law from proceeding with her state judicial remedy, "regardless of which section of the Ohio Revised Code under which she brings her state age discrimination claims."

While we do not necessarily disagree with this assertion with respect to Ohio Rev.Code §§ 4101.17, 4112.02, 4112.05 and 4112.08, see Morris v. Kaiser Engineers, 14 Ohio St.3d 45, 46, 471 N.E.2d 471, 473 (1984); Keister v. Delco Products, 680 F.Supp. 281, 282 (S.D.Ohio 1987); Merkel v. Scovill, 570 F.Supp. 133, 138 (S.D.Ohio 1983), rev'd on other grounds 787 F.2d...