Pozzobon v. Parts for Plastics, Inc.
Decision Date | 09 July 1991 |
Docket Number | No. 91-CV-403.,91-CV-403. |
Citation | 770 F. Supp. 376 |
Parties | Orlando J. POZZOBON, Plaintiff, v. PARTS FOR PLASTICS, INC., Defendant. |
Court | U.S. District Court — Northern District of Ohio |
Gary W. Spring, Roetzel & Andress, Akron, Ohio, for plaintiff.
Paul A. Monahan, Duvin, Cahn & Barnard, Cleveland, Ohio, for defendant.
Currently pending before the court in the above-captioned matter is a motion to dismiss the third and fourth counts of plaintiff Orlando J. Pozzobon's complaint under Fed.R.Civ.P. 12(b)(6) filed by defendant Parts for Plastic, Inc. The underlying complaint, filed on March 5, 1991, alleges age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (Counts One and Two), and Ohio Revised Code § 4112.02(A) (Count Three); wrongful discharge in violation of Ohio public policy (Count Four); and intentional infliction of emotional distress (Count Five). The claim of age discrimination under Ohio law is brought pursuant to O.R.C. §§ 4112.02(N) and 4112.99. Plaintiff seeks a declaration that the policies and practices of defendant are in violation of the ADEA, a permanent injunction, and $500,000 in compensatory and punitive damages.
When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is constrained to accept as true the allegations of a complaint. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983), Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1065 (6th Cir.1984). The motion to dismiss under 12(b)(6) should be denied unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Nishiyama v. Dickson Cty., 814 F.2d 277, 279 (6th Cir.1987) (en banc).
The court's analysis begins with a consideration of plaintiff's third count, the allegation of age discrimination under Ohio law. Plaintiff claims a violation of O.R.C. § 4112.02(A), which provides as follows:
Plaintiff's asserted basis for a private cause of action under this section is two-fold, O.R.C. §§ 4112.02(N) and 4112.99. The former section provides as follows:
Defendant argues that O.R.C. § 4112.08 expressly bars plaintiff's claim of age discrimination under Ohio law in this case. This section provides as follows:
The provisions of section 4112.01 to 4112.08 of the Revised Code, shall be construed liberally for the accomplishment of the purposes thereof and any law inconsistent with any provision hereof shall not apply. Nothing contained in section 4112.01 to 4112.08 and 4112.99 of the Revised Code, shall be deemed to repeal any of the provisions of any law of this state relating to discrimination because of race, color, religion, sex, national origin, age, or ancestry; except that any person filing a charge under section 4112.05 of the Revised Code is, with respect to the practices complained of, thereby barred from instituting a civil action under section 4101.17 or division (N) of section 4112.02 of the Revised Code.
O.R.C. § 4112.08 (emphasis added). Section 4112.05 provides for the filing of a grievance with the Ohio Civil Rights Commission in order to redress alleged unlawful discriminatory practices. § 4112.05(B). The complaint herein states that plaintiff has filed such a grievance, and plaintiff does not controvert this in his brief in opposition to the motion to dismiss. Consequently, according to defendant, plaintiff is precluded from bringing this suit due to the explicit and unambiguous language of § 4112.08.
In response, plaintiff argues that the Code expressly allows the bringing of the instant cause, citing to § 4112.99. According to plaintiff's logic, while the language of § 4112.08 may bar an aggrieved party from bringing a private action under § 4112.02(N) if that person has already filed a claim with the Civil Rights Commission under § 4112.05, it does not also bar one from bringing such an action under § 4112.99, which is not mentioned in § 4112.08. Having filed the instant cause under § 4112.99 as well as § 4112.02(N), plaintiff contends that § 4112.08 thus cannot be utilized to bar his claim.
In support of the proposition that the language of § 4112.99 allows the filing of a private action in the instant cause, plaintiff cites to three cases: Elek v. Huntington National Bank, 50 FEP Cases 1396, 1989 WL 98437 (Ohio App. Franklin Cty.1989); Everman v. Mary Kay Cosmetics, 51 FEP Cases 1594, 1990 WL 11540 (S.D.Ohio 1990); and Grant v. Monsanto Co., 51 FEP Cases 1593, 1989 WL 222961 (S.D.Ohio 1989). Elek and Grant stand for the proposition that § 4112.99 provides for a private right of action for any violation of Chapter 4112, notwithstanding the fact that other parts of the chapter create overlapping private causes of action for specific types of discrimination. The Grant court specifically held that § 4112.99 creates an entirely new, separate private cause of action, and that an aggrieved person may bring an age discrimination in employment suit under either § 4112.99 or § 4112.02(N). On June 12, 1991, the Ohio Supreme Court affirmed the court of appeals decision in Elek. See Elek v. Huntington National Bank, 60 Ohio St.3d 135, 573 N.E.2d 1056 (1991). The case involved a handicap discrimination claim brought as a private civil action pursuant to § 4112.99. In rejecting the defendant's argument that § 4112.99 does not create a new, independent private right of action, the Supreme Court found, inter alia, that the language of this section is unambiguous and that the legislative history supports such an interpretation. Id., 60 Ohio St.3d at 137, 573 N.E.2d 1056. Due to this recent Supreme Court holding, we are constrained to hold that an age discrimination claimant may utilize either § 4112.02(N), § 4112.99, or both in pursuing an action for age discrimination.
The Supreme Court in Elek, however, did not face the more narrow issue before this court, viz., whether § 4112.99 allows a private right of action for age discrimination where the plaintiff-employee has previously filed a claim with the Civil Rights Commission under § 4112.05. This court does not believe that Elek could reasonably be read to stand for such a proposition. If the legislature had desired that § 4112.99 would so modify the language of § 4112.08 in cases of age discrimination, we believe that it would have done so in a less ambiguous fashion, either by changing the language of § 4112.08 or by more clearly stating its intent in § 4112.99. In holding as we do, we are guided by the caveat contained in § 4112.08 that "nothing contained in sections 4112.01 to 4112.08 and 4112.99 of the Revised Code shall be deemed to repeal any of the provisions of law of this state relating to discrimination ..." (emphasis added). The court takes this language to mean that the 1987 amendment to § 4112.99 creating an independent private right of action was not intended to and does not alter the final sentence of § 4112.08, nor does it alter the detailed, comprehensive legislative scheme created for age discrimination suits, see infra.
The holding of this court, thus, has no bearing upon the efficacy of Elek. The court there was not faced with issues regarding the effect of § 4112.99 on § 4112.08 in age discrimination suits. Elek, rather, stands for the proposition that both § 4112.99 and § 4112.02(N) create independent private rights of action in age discrimination suits. With this holding we are in complete agreement. The court does not believe, however, that the amendment to § 4112.99 nullifies the effect of § 4112.08 in age discrimination suits. Thus, while an employee is permitted to bring a private action for age discrimination under § 4112.99, he should not be allowed to circumvent Ohio's detailed legislative scheme for bringing age discrimination suits, including the mandate of § 4112.08.
In closing this portion of the opinion, and holding that Count Three of the complaint is barred, the court adopts the following reasoning:
To continue reading
Request your trial-
Hedrick v. Honeywell, Inc.
...bars any independent court action under § 4112. The Court cannot agree with this contention. Defendant cites Pozzobon v. Parts for Plastics, Inc., 770 F.Supp. 376 (N.D.Ohio 1991), for the proposition that an administrative action under § 4112.05 forecloses any subsequent court action under ......
-
Senter v. Hillside Acres Nursing Center of Willard, No. 3:03 CV 7638.
...its holding in part on the reasoning of the United States District Court for the Northern District of Ohio in Pozzobon v. Parts for Plastics, Inc., 770 F.Supp. 376 (N.D.Ohio 1991). The Pozzobon court reasoned that a provision found in Ohio Rev.Code § 4112.08, which at the time provided that......
-
Borowski v. State Chem. Mfg. Co.
...remedy. As a general rule, filing with the OCRC precludes a subsequent suit under R.C. 4112.99. R.C. 4112.08; Pozzobon v. Parts for Plastics, Inc. (N.D.Ohio 1991), 770 F.Supp. 376; Schwartz v. Comcorp, Inc. (1993), 91 Ohio App.3d 639, 633 N.E.2d 551; Balent v. Natl. Reserve Corp. (1994), 93......
-
Pater v. Health Care and Retirement Corp.
...Co., 589 F.Supp. 768 (S.D.Ohio 1984),1 as well as the district court for the Northern District of Ohio in Pozzobon v. Parts for Plastics, Inc., 770 F.Supp. 376 (N.D.Ohio 1991). In Merkel and Ackman we held that sections 4101.17, 4112.02(N) and 4112.05 were intended to be exclusive, and thus......