CHRISTOPHER A. BOYKO, District Judge.
This matter is before the Court on the Motion of Defendants Village of Wellington and Mayor Barbara O'Keefe to Dismiss (ECF # 6). For the following reasons, the Court grants, in part, and denies in part, Defendants' Motion.
According to the Complaint, Plaintiff Daniel C. Rosecrans ("Plaintiff") is a part-time police officer with the Village of Wellington. He alleges he was passed over for a promotion to full-time police officer position in favor of a younger officer. At the time he was passed over, Plaintiff was 47 years old. On September 28, 2014, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging he was denied promotion from part-time to full-time police officer due to his age. Plaintiff's EEOC Charge alleged this action violated the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA") and constituted retaliation under these statutes. Plaintiff obtained a right to sue letter from the EEOC and filed his Complaint in this Court alleging Age Discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), (Count I) and Ohio Revised Code ("O.R.C.") Sections 4112.02, 4112.14 (Counts II & III) and Hostile Work Environment under § 4112 and § 4112.99 (Count IV) and Retaliation under O.R.C. 4112.02 and 4112.99 (Count V). Plaintiff brings these claims against the Village of Wellington and Mayor Barbara O'Keefe in her individual capacity.
Defendants argue that Mayor Barbara O'Keefe ("O'Keefe") cannot be liable under the ADEA in her individual capacity because she is not an employer as defined by the statute. Because only employers are liable under the ADEA, Plaintiff's ADEA claim against O'Keefe must be dismissed. Defendants further contend Plaintiff's Ohio age discrimination claims brought under Sections 4112.02, 4112.14 and 4112.99 are all subject to dismissal because Ohio also requires Defendant be an employer in order to be subject to liability.
Defendants also argue that only § 4112.02(I) subjects a "person" to liability for discriminatory acts but O'Keefe is immune under § 2744.03(A)(6). Because the Complaint alleges no facts against O'Keefe establishing individual discriminatory conduct, no liability may be imposed.
Defendants represent that the ADEA requires suit be filed within ninety days after receipt of a right to sue letter from the EEOC. Plaintiff filed suit ninety-seven days after receipt of the right to sue letter, therefore, Plaintiff filed outside the statutory period.
Likewise, Defendants contend Plaintiff's state law claims were filed outside the 180 day limitation period and must be dismissed. Also, § 4112.14 claims are limited to hiring and firing. Since Plaintiff was not fired and was already employed as a part-time officer, Defendants believe the cause of action does not apply. In addition, Plaintiff elected to pursue administrative claims by filing a Complaint with the EEOC and Ohio Civil Rights Commission ("OCRC") and cannot bring an action in the court under Sections 4112.02 and 4112.14, which contain election-of remedies provisions.
Finally, Defendants contend Plaintiff's Complaint fails to allege any facts supporting Hostile Work Environment or Retaliation claims.
Plaintiff responds that the time stamp on his Right to Sue letter demonstrates receipt within ninety days of his filing of the Complaint. Plaintiff also contends that Ohio's immunity statute does not apply to a cause of action brought under § 4112.02(J), nor does it apply when conduct alleged under § 4112 was done maliciously in bad faith or in a wanton reckless manner as his Complaint alleges.
According to Plaintiff, Ohio applies a six year limitation period for claims brought under Sections 4112.14 and 4112.99, therefore, none of his claims brought under these statutes are time-barred. Furthermore, Plaintiff contends filing an EEOC claim automatically operates as a filing with the OCRC and because no substantive claim was brought before the OCRC, his filing does not constitute an election to pursue administratively his claims against Wellington.
Lastly, Plaintiff asserts that his Complaint pleads sufficient facts to support plausible claims for Hostile Work Environment and Retaliation.
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court need not, however, accept conclusions of law as true:
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir. 2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)). That is, "Iqbal interpreted Twombly to require more concrete allegations only in those instances in which the complaint, on its face, does not otherwise set forth a plausible claim for relief." Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
The ADEA prohibits discrimination in the workplace by an employer based on age and reads in pertinent part:
29 U.S.C. § 623.
The ADEA defines "employer" as:
Courts have consistently held that supervisors sued in their individual capacities are not employers under the ADEA. "Indeed, numerous courts, including this one, have held that supervisors, sued in their individual capacities, are not included within the statutory definition of "employer" under Title VII and its sister civil rights statutes, and accordingly cannot be held personally liable for discrimination." Hiler v. Brown, 177 F.3d 542, 546 (6th Cir. 1999), see also Smith v. Lomax, 45 F.3d 402, 403 (11th Cir.1995). Most instructive is the Sixth Circuit case of Wathen v. Gen. Elec. Co., 115 F.3d 400 (6th Cir.1997), wherein the court, in addressing sex discrimination claims under Title VII, held that an individual employee/supervisor, who does not otherwise qualify as an "employer," cannot be held personally liable under Title VII. Id. at 405. In reaching its decision, the Sixth Circuit observed that the "employer" definitions in Title VII and the ADEA are close counterparts.
Wathen, 115 F.3d at 404 n. 6.
The Sixth Circuit concluded it is "`inconceivable' that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees." Id. at 406 quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir.1995)).
This conclusion was also reached by another Court in this district in a recent decision. See Bailey v. E. Liverpool City Hosp., No. 4:14 CV 2809, 2015 WL 5102768, at *3 (N.D. Ohio Aug. 31, 2015). Plaintiff offers no rebuttal to Defendants' argument. Therefore, the Court finds O'Keefe cannot be held liable in her individual capacity as supervisor for alleged discrimination brought under the ADEA and the Court grants Defendants' Motion to Dismiss Plaintiff's ADEA claim against O'Keefe.
Defendants moved to dismiss Plaintiff's ADEA claim against the Village of Wellington because it was filed more than ninety days after Plaintiff received his right to sue letter from the EEOC. In his Opposition, Plaintiff pointed the Court to the October 23, 2014 date of the EEOC letter to Plaintiff containing his right to sue notice. Plaintiff filed his Complaint on January 21, 2015, placing it within the ninety day filing period limitation. Defendants concede the matter and the Court denies Defendants' Motion to Dismiss Count I of Plaintiff's Complaint for ADEA discrimination against the Village of Wellington.
Defendants raise a number of defenses to O'Keefe's liability on Plaintiff's claims brought under Ohio law. First, Defendants contend O'Keefe is not liable for age discrimination under Sections 4112.02, 4112.14 or 4112.99 because she is not an employer. She further argues she is immune under § 2744. O'Keefe also contends Plaintiff's § 4112.02 claims fail because they are subject to the 180 day limitation period found in § 4112.02(N). By filing with the OCRC, O'Keefe argues Plaintiff elected an administrative remedy and cannot pursue an action in Court. Lastly, O'Keefe asserts Plaintiff's claims fail to allege sufficient facts to support plausible claims for Hostile Work Environment and Retaliation under Ohio law and the Court must dismiss under United States Supreme Court pleading precedent.
Plaintiff does not offer any opposing argument to Defendants' contention that O'Keefe is not an employer under Sections 4112.02 and 4112.14 and 4112.99. Plaintiff's only response to the argument is a quote from the Ohio Supreme Count in Hauser v. Dayton Police Dept. (2014) 140 Ohio St.3d 268, wherein the Court found that Sections 4112.02(A)(2) and 4112.02(A) apply only to employers. The Court continued that other provisions of § 4112.02 do in fact impose liability on employees, including § 4112.02(J), which imposes liability on employees for aiding and abetting discrimination.
O.R.C. §§ 4112.02(A) and 4112.14 expressly prohibit age discrimination by employers.
O.R.C. § 4112.02(A) reads:
It shall be an unlawful discriminatory practice:
O.R.C. § 4112.14(A) reads:
Defendants contend these provisions expressly prohibit discriminatory conduct by employers. In Hauser, the Ohio Supreme Court held "R.C. 4112.01(A)(1) and 4112.02(A) subject employers to vicarious liability and do not expressly impose liability on individual employees." Hauser, 140 Ohio St.3d at ¶ 12. O.R.C. § 4112.14 similarly applies only to "employers." Therefore, Plaintiff's age discrimination claims brought under Sections 4112.02(A) and 4112.14 fail against O'Keefe because she is not an employer as defined by statute or Ohio law. Plaintiff has offered no law or argument against this position.
Any claims asserted by Plaintiff against O'Keefe under any subsection of § 4112.02 must also be dismissed because § 4112.02(N) imposes a 180 limitation period.
While the Complaint does not specify the date on which Plaintiff was denied the promotion, Plaintiff's EEOC charge attached to his Complaint places the date on or about June 2, 2014. Plaintiff filed his Complaint on January 21, 2015, more than 180 days after he was denied the promotion. Therefore, any claims brought under § 4112.02 are time-barred and must be dismissed.
Lastly, insofar as Plaintiff's Complaint asserts an Age Discrimination claim under § 4112.99, that provision is subject to the substantive provisions of Sections 4112.02 and 4112.14. See Meyer v. United Parcel Service, (2009) 122 Ohio St.3d 104 ¶1. Because O'Keefe is entitled to dismissal of Plaintiff's age discrimination claims under Sections 4112.02 and 4112.14, the Court also dismisses Plaintiff's Ohio law age discrimination claims against O'Keefe brought under § 4112.99.
Plaintiff's claims against O'Keefe for Hostile Work Environment and Retaliation, both of which are brought under Sections 4112.02 and 4112.99, are also barred by § 4112.02(N)'s 180 day limitation period. Plaintiff's Complaint alleges no facts, other than the failure to promote, supporting either of these claims.
Even if the Court were to find the statutory limitation period does not bar his claims, the Complaint wholly fails to state sufficient facts to support these claims. Both Plaintiff's Hostile Work Environment and Retaliation claims are stated conclusorily with no supporting factual allegations.
Under the heading "Factual Background" Plaintiff's Complaint alleges:
Plaintiff's Hostile Work Environment Complaint reads:
"The Ohio Supreme Court generally follows the analytic framework established by federal case law for use under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., in interpreting and deciding age-discrimination claims brought under R.C. 4112.02." Hidy Motors, Inc. v. Sheaffer, 183 Ohio App.3d 316, 323, (Ohio App. 2nd Dist 2009). "The criteria for a prima facie claim of a hostile environment under the ADEA are that (1) the employee is 40 years or older, (2) the employee was subjected to harassment, either through words or actions, based on age, (3) the harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile, or offensive work environment, and (4) there exists some basis for liability on the part of the employer." Id. citing Crawford v. Medina Gen. Hosp. 96 F.3d 830, 834-835 (6th Cir. 1996).
Other than alleging Plaintiff was 47 years old and was denied a promotion which was given to a less qualified, substantially younger individual, the Complaint is utterly devoid of factual allegations supporting a plausible hostile work environment claim. Plaintiff's claim merely alleges the elements of a Hostile Work Environment claim without factual allegations. This pleading fails the Twombly/Iqbal pleading requirements and the Court dismisses Plaintiff's Hostile Work Environment claim.
Concerning Plaintiff's Retaliation claim against O'Keefe, Ohio law requires Plaintiff establish that "(1) she engaged in a protected activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the defending party took an adverse employment action against the employee, and (4) there is a causal connection between the protected activity and adverse action." Greer-Burger v. Temesi, (2007) 116 Ohio St.3d 324, 327, Canitia v. Yellow Freight Sys., Inc. (C.A.6, 1990), 903 F.2d 1064, 1066. Plaintiffs Retaliation claim reads:
Plaintiff's Retaliation claim also fails to assert factual allegations that would support a plausible claim for Retaliation under Ohio law. Plaintiff fails to allege a protected activity that prompted an adverse employment act by Defendants. The filing of the EEOC complaint is the only protected activity alleged in the Complaint but that cannot form the basis of a Retaliation claim since he filed it after the adverse action. Without more, this claim also fails to state a claim and is dismissed as to O'Keefe.
As previously discussed, O.R.C. § 4112.02(N) places a 180 day statutory limitation period on any claims brought under § 4112.02. Thus, any of Plaintiff's claims premised on liability under § 4112.02 are time barred.
Furthermore, for the reasons discussed above, Plaintiff's Hostile Work Environment and Retaliation claims must also be dismissed because they fail to allege sufficient factual allegations rendering them plausible.
Plaintiff's remaining claim for Age Discrimination under state law alleges Plaintiff was unlawfully discriminated against when Defendant failed to hire him for the full-time police officer position based on his age.
O.R.C. § 4112.14 reads:
Because O.R.C. § 4112.14 permits a claim for age discrimination in relation to a job opening this section properly applies to the facts in this case. However, Ohio discrimination law under § 4112 requires a Plaintiff elect either an administrative or judicial remedy when alleging unlawful age discrimination. When a plaintiff elects to pursue an administrative claim he or she is prohibited from filing a claim arising from the same allegations in court. This election requirement is codified in O.R.C. § 4112.08, which reads in pertinent part: ". . . any person filing a charge under division (B)(1) of section 4112.05 of the Revised Code, with respect to the unlawful discriminatory practices complained of, is barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code."
O.R.C. § 4112.05 permits the filing of an administrative action with the Ohio Civil Rights Commission. "Any person may file a charge with the commission alleging that another person has engaged or is engaging in an unlawful discriminatory practice." O.A.C. § 4112-3-01(D)(3) holds that a charge filed with the EEOC is deemed filed with the OCRC. See Neal v. Franklin Plaza No. 91722, 2009 WL 1156706 *4 (Ohio Ct. App 8th Dist April 30, 2009).
Because Plaintiff filed a charge with the OCRC he is precluded from bringing an O.R.C. § 4112.14 claim in court.
The Court finds Plaintiff elected to file a charge with the EEOC/OCRC and such election precludes him from filing a claim of age discrimination under O.R.C. § 4112.14.
Therefore, for the foregoing reasons, the Court dismisses all claims against O'Keefe in her individual capacity and dismisses all but Count I of Plaintiff's claims against the Village of Wellington. The case shall proceed on Plaintiff's ADEA claim against the Village of Wellington.
IT IS SO ORDERED.
