ORDER DENYING DEFENDANT'S PARTIAL MOTION TO DISMISS

SUSAN J. DLOTT, Chief Judge.

This matter is before the Court on Defendant's Motion to Dismiss Plaintiffs' age discrimination claims brought under Ohio Revised Code Chapter 4112. Doc. 9. For the reasons that follow, the Court DENIES Defendant's Motion.

I. BACKGROUND

Plaintiffs Diane Flint and Sarah Ann Hill are former employees of Defendant, Mercy Health Partners of Southwest Ohio ("Mercy"). Plaintiffs claim that Mercy discriminated against them on the basis of their age and race when it terminated their employment. Flint was sixty-four years old when she was terminated and had worked for Defendant for nearly forty-two years. Hill had worked for Defendant for more than forty years as a surgical technician and was sixty years old when she was terminated. Flint and Hill timely filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 21, 2011, and both received Notice of Right to Sue letters from the EEOC in the summer of 2012. Plaintiffs filed their Complaint in this case within ninety days of receiving the EEOC Notice of Right to Sue letters.

Plaintiffs raise four counts in their Complaint: (I) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), (II) age discrimination in violation of Ohio Revised Code ("O.R.C.") Chapter 4112, (III) race discrimination in violation of Title VII, and (IV) race discrimination in violation of O.R.C. Chapter 4112. Mercy moves the Court to dismiss Count II for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Mercy asserts that by filing an age discrimination charge against it with the EEOC, Plaintiffs have elected a remedy that precludes them from pursuing their pendent state age discrimination claim under O.R.C. Chapter 4112. Plaintiffs dispute that filing a charge with the EEOC is equivalent to electing an administrative remedy under Ohio law.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in a light most favorable to the plaintiff and accept the factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.2008). The Court "need not, however, accept conclusory allegations or conclusions of law dressed up as facts." Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir.2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss a complaint for lack of subject matter jurisdiction. Rule 12(b)(1) motions to dismiss based on subject matter jurisdiction generally come in two varieties — those which attack the complaint on its face and those which attack the existence of subject matter jurisdiction in fact. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). In a "facial attack," the basis of the challenge is that a plaintiff has failed to faithfully recite all the jurisdictional predicates necessary for the Court to exercise subject matter jurisdiction over the matter. Id. at 1134-35. In contrast, a party makes a "factual attack" when the party challenges the actual existence of the jurisdiction even though the complaint contains the formal allegations necessary to invoke jurisdiction. Id. The Court will construe Mercy's Rule 12(b)(1) challenge as a facial attack as the motion does not dispute the jurisdictional facts pled in the Complaint. When reviewing a facial attack, the Court must consider the allegations contained in the complaint to be true and draw all reasonable inferences in the plaintiff's favor, much as with a Rule 12(b)(6) motion. Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir.2012).

III. ANALYSIS

The sole issue presented by Mercy's motion is whether Plaintiffs are barred from pursuing their state law age discrimination claims under O.R.C. Chapter 4112 because their filing of a charge of discrimination with the EEOC constituted an election of remedies under Ohio law. After drawing all reasonable inferences in Plaintiffs' favor, the Court finds that their pro se filing of an EEOC charge did not constitute an election of remedies under Ohio's statutory scheme and they are not precluded from pursuing their state law age discrimination claims in this Court.

A. Interplay Between Ohio and Federal Age Discrimination Laws

The Ohio Revised Code provides four avenues through which an employee can pursue a claim of age discrimination: (1) § 4112.02(N), which creates a civil action for violations of subsections (A) and (B) of that section;1 (2) § 4112.05, which provides for an administrative remedy, permitting the employee to bring a complaint before the Ohio Civil Rights Commission ("OCRC");2 (3) § 4112.14(B), which permits a civil action for a violation of subsection (A) of that section;3 and (4) § 4112.99, which permits a civil action for a violation of any provision of Chapter 4112.4 Spengler v. Worthington Cylinders, 438 F.Supp.2d 805, 807-08 (S.D.Ohio 2006). Each of the first three statutory remedies is expressly exclusive — the choice of one remedy precludes recourse to any of the other three remedies. Talbott v. Anthem Blue Cross & Blue Shield, 147 F.Supp.2d 860, 861-62 (S.D.Ohio 2001) (citing O.R.C. §§ 4112.08, 4112.14(B)). The fourth statutory remedy, § 4112.99, is neither expressly exclusive nor expressly subject to an election of remedies bar. Spengler, 438 F.Supp.2d at 808 (citing Talbott, 147 F.Supp.2d at 861-62). However, the general consensus among Ohio courts is that the election of remedies scheme applies to age discrimination claims brought under § 4112.99. Reminder v. Roadway Express, Inc., No. 5:04-cv-02581, 2006 WL 51129, at *2 (N.D.Ohio Jan. 10, 2006) (citing cases). Under the foregoing statutory scheme, it is generally true that if an employee files a charge of discrimination with the OCRC, she has elected to pursue an administrative remedy under O.R.C. § 4112.05 as opposed to a civil action under state law.5

Federal law also prohibits an employer from discriminating against its employees on the basis of their age. Specifically, the ADEA prohibits an employer from failing or refusing to hire, discharging, or discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Before commencing a federal suit under the ADEA, an employee must first file an administrative charge. Dunn v. Medina Gen. Hosp., 917 F.Supp. 1185, 1190 (N.D.Ohio 1996). The administrative charge may be filed with either the EEOC or the OCRC. However, whether the employee files the charge with the EEOC or the OCRC, the charge is deemed filed with the OCRC. This is because Ohio is a "deferral state" within the meaning of the ADEA, and "[t]he Supreme Court has held that 29 U.S.C. § 633(b) mandates that in states where established agencies are empowered to remedy age discrimination in employment (deferral states), a person may not bring a suit in federal court under the ADEA unless she has commenced a proceeding with the appropriate state agency." Id. (citing Oscar Mayer and Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979)). Ohio Administrative Code § 4112-3-01(D)(3), which states that a charge filed with the EEOC is deemed filed with the OCRC on the same date the charge is received by the EEOC, effectuates this policy.

Unfortunately, this process of deeming an EEOC charge as being simultaneously filed with the OCRC

Reminder, 2006 WL 51129, at *6. Precluding an employee from pursuing simultaneous relief under state and federal law was not Congress' intent when it encouraged state resolution of age discrimination claims: "While it was the intent of Congress to encourage the resolution of age discrimination disputes on the state level through recourse to state administrative remedies, it is equally clear that Congress intended to make the remedies of the ADEA complementary and supplementary to state administrative remedies, and not mutually exclusive." Dunn, 917 F.Supp. at 1190 (citing Oscar Mayer, 441 U.S. at 764, 99 S.Ct. 2066). Nevertheless, courts remain divided over whether to construe an age discrimination charge filed with the EEOC in Ohio as an election of an administrative remedy under Ohio law. Having reviewed both lines of cases, this Court agrees with the reasoning supporting the decisions that do not construe an EEOC filing as a bar to a judicial remedy under state law.

B. Effect of First Filing a Charge with the OCRC

When an employee files a charge of age discrimination with the OCRC before filing a civil lawsuit and does not indicate that she is doing so only to preserve her right to pursue a claim under the ADEA, she has elected an administrative remedy under O.R.C. § 4112.05. See, e.g., Oliver v. St. Luke's Dialysis, LLC, No. 1:10cv2667, 2011 WL 3585462 (N.D.Ohio Aug. 11, 2011); Woods v. Vermilion Local Sch. Dist., No. 3:98cv7462, 1999 WL 652019, at *4 (N.D.Ohio Aug. 9, 1999); Talbott, 147 F.Supp.2d at 862; Pozzobon v. Parts for Plastics, Inc., 770 F.Supp. 376, 379 (N.D.Ohio 1991); Balent v. Nat'l Revenue Corp., 638 N.E.2d 1064, 1067, 93 Ohio App.3d 419 (Ohio Ct.App.1994). In all of those cases, the employee filed a discrimination charge with the OCRC prior to initiating a lawsuit seeking damages. Those courts concluded that the employee's claim under O.R.C. Chapter 4112 was barred by the election of remedies doctrine because the employee had first and without qualification filed a charge of discrimination with the OCRC.

To the contrary, an employee who specifies in her OCRC discrimination charge that she is filing for procedural purposes only, files a charge with the OCRC after filing the lawsuit, or files the charge and lawsuit contemporaneously is not barred by the election of remedies doctrine from pursuing a state-law discrimination claim. See, e.g., Baker v. Siemens Energy and Automation, Inc., 838 F.Supp. 1227, 1234 (S.D.Ohio 1993); Morris v. Kaiser Eng'rs, Inc., 471 N.E.2d 471, 474, 14 Ohio St.3d 45 (1984); Borowski v. State Chem. Mfg. Co., 647 N.E.2d 230, 234-35, 97 Ohio App.3d 635 (Ohio Ct.App. 1994). In those cases, the courts found that if the plaintiff expressly stated in his administrative charge filed with the OCRC that he was filing only to perfect a claim under the ADEA, he was not barred from bringing suit under O.R.C. Chapter 4112.6 According to this line of cases, "a plaintiff who files OCRC charges for the sole purpose of perfecting an ADEA claim must make that purpose clear." Woods, 1999 WL 652019, at *4. However, the ability of a member of the general public to take advantage of the "exception" that allows pursuit of both a federal and state discrimination claim by specifying in the OCRC filing that it was being filed purely to perfect an ADEA claim depends on "a sophistication ..., and deep familiarity with the law ... that is rather unrealistic." Williams v. Allstate Ins. Co., No. 5:04cv2435, 2005 WL 1126761, at *4 (N.D.Ohio Apr. 9, 2005). "Indeed, `[t]he interface between the federal and Ohio state procedures for filing an age discrimination charge is a minefield for the unwary litigant.'" Id. (quoting Baker, 838 F.Supp. at 1234).

C. Effect of First Filing a Charge with the EEOC

While precedent demonstrates that filing an unqualified charge of discrimination with the OCRC constitutes an election of remedies under § 4112.05, the rule is not so clear when the employee files a charge with the EEOC. Courts confronted with motions to dismiss Chapter 4112 claims where plaintiffs have raised those claims after filing a charge with the EEOC disagree whether the filing amounts to an election of remedies under Ohio law such that the plaintiff is then barred from relief under O.R.C. Chapter 4112. The divergence of views results from the fact that the interpretation of the Ohio General Assembly's intent in drafting an election of remedies into Chapter 4112 is a matter of state law, and the Ohio Supreme Court has not directly addressed the issue of whether an EEOC filing equates with the election of an administrative remedy under § 4112.05. Spengler, 438 F.Supp.2d at 809.

While the Ohio Supreme Court has not opined on the express question of whether an EEOC filing equates with an election of remedies under the Ohio statute, it has expressed an unwillingness to interpret Chapter 4112's election of remedies scheme to preclude an individual from pursuing both a federal and state law claim for age discrimination. Id. (citing Morris, 14 Ohio St.3d 45, 471 N.E.2d 471 (holding that a plaintiff who had filed a claim of age discrimination under state law was not barred from later filing a charge with the OCRC under § 4112.05 to meet the prerequisites for filing a federal age discrimination claim)). The Morris court, interpreting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), observed that "the goal of the court in Oscar Mayer was to preserve the ADEA action and protect it from failure on the basis of state law. Any other result would essentially prevent Ohio plaintiffs from joining claims under the ADEA with either of the judicial remedies provided by the Revised Code." Morris, 14 Ohio St.3d at 47, 471 N.E.2d at 474.

The Sixth Circuit has considered the question, and it found that "[t]here is no indication that Ohio intended to bar a plaintiff who went to the EEOC, seeking no remedy from the [OCRC], from pursuing a claim under section 4101.17 [now § 4112.14] where filing with the EEOC is required for the filing of a federal claim." Lafferty v. Coopers and Lybrand, No. 87-3221, 1988 WL 19182, at *4 (6th Cir. March 8, 1988) (reversing dismissal of Ohio statutory claim and noting that "[t]he reasoning of Morris strongly supports this interpretation."). Similarly, in an earlier-decided case, the Sixth Circuit noted the following:

McLaughlin v. Excel Wire & Cable, Inc., No. 85-3258, 1986 WL 16659, at *3-4 (6th Cir. March 24, 1986) (reversing district court's decision holding that the filing of an EEOC charge precluded subsequent state judicial relief).

Despite the holdings of McLaughlin and Lafferty, several district courts within the Sixth Circuit have held that the filing of a charge with the EEOC qualifies as an election of remedy pursuant to § 4112.05, precluding the plaintiff from seeking a judicial remedy under state law. See, e.g., Hillery v. Fifth Third Bank, No. 2:08cv1045, 2009 WL 1322304 (S.D.Ohio May 11, 2009); Gray v. Allstate Ins. Co., No. 1:03cv910, 2005 WL 2372845 (S.D.Ohio Sept. 26, 2005); and Williams v. Allstate Ins. Co., 2005 WL 1126761 (N.D.Ohio Apr. 9, 2005). Hillery relied on three Ohio appellate court decisions to conclude that an age discrimination lawsuit pursuant to Ohio law was barred under the election of remedies doctrine when a charge of discrimination is filed with the EEOC: Schwartz v. Comcorp, Inc., 91 Ohio App.3d 639, 633 N.E.2d 551 (Ohio App.1993);7 Williams v. Rayle Coal Co., No. 96-BA-42, 1997 WL 598091 (Ohio App. Sept. 19, 1997),8 and Clark v. City of Dublin, No. 01AP-458, 2002 WL 465013 (Ohio App. March 28, 2002).9 Although none of those Ohio appellate courts examined the relevant Ohio Supreme Court precedent of Morris nor considered that construing the filing of an EEOC charge as an election of remedies would preclude employees from pursuing both federal and state legal remedies for age discrimination, the Hillery court believed it was bound to follow those courts' decisions and hold that a charge of discrimination filed with the EEOC constitutes a filing with the OCRC, triggering Ohio's election of remedies doctrine. Hillery, 2009 WL 1322304, at *4.

The court in Williams granted an employer's motion to dismiss the plaintiff's state law age discrimination claim where the plaintiff had first filed a discrimination charge with the EEOC. 2005 WL 1126761, at *1. The court did so after noting that employees who wanted to pursue both state and federal claims could do so by filing an OCRC charge that expressly indicated that he/she was filing for procedural purposes only or by filing the OCRC charge after the lawsuit. Id. at *4 (citing Woods, 1999 WL 652019, at *4; Baker, 838 F.Supp. at 1234; Morris, 471 N.E.2d at 474; Borowski, 647 N.E.2d at 234-35). The court acknowledged, though, that taking advantage of those narrow exceptions "admittedly assumes a sophistication of, and deep familiarity with the law by, the general public that is rather unrealistic" and noted that barring the plaintiff from pursuing her state law discrimination claim because she had filed a charge with the EEOC was "somewhat unfair, especially when considering Plaintiff is pro se and would likely have never been aware of this nuance of Ohio discrimination law." Id.

The court in Gray also concluded that the filing of a charge with the EEOC in Ohio was an election of the remedy provided by O.R.C. § 4112.05. Gray, 2005 WL 2372845, at *6. Like Williams, the Gray court relied on Morris and Borowski when concluding that "[a] plaintiff may file a charge of age discrimination with the EEOC in order to preserve an ADEA claim for later prosecution without implicating the election-of-remedies doctrine by expressly acknowledging in the charge that no investigation is requested because the charge is being filed only to protect federal rights." Id. (citing Morris, 14 Ohio St.3d, at syllabus ¶ 1, 471 N.E.2d 471; and Borowski v. State Chem. Mfg. Co., 97 Ohio App.3d 635, 647 N.E.2d 230 (Ohio App.1994)). However, as discussed previously, both Morris and Borowski concerned a plaintiff's filing of an administrative charge with the OCRC, not the EEOC.

In contrast to Hillery, Gray, and Williams, other federal district courts have refused to construe an EEOC filing as an election of remedies. See, e.g., Esparza v. Pierre Foods, No. 1:11cv874, 923 F.Supp.2d 1099, 2013 WL 550671 (S.D.Ohio Feb. 12, 2013); Johnson v. Ohio Cas. Ins. Co., No. 1:05cv742, 2006 WL 2849781 (S.D.Ohio Sept. 29, 2006); Spengler, 438 F.Supp.2d 805; Reminder, 2006 WL 51129; Pitts v. Dayton Power & Light Co., 748 F.Supp. 527 (S.D.Ohio 1989). In Reminder, the plaintiffs filed a charge of age discrimination with the EEOC and then filed suit making claims for age discrimination in violation of the ADEA and the Ohio Revised Code. The defendant moved to dismiss the state law claim, arguing that the claim was barred by Chapter 4112's election of remedies provision. The court denied the motion to dismiss after concluding that the plaintiffs' act of filing a charge with the EEOC was not equivalent to electing an administrative remedy under § 4112.05.

In reaching its decision, the Reminder court considered the federal and state court decisions that held the filing of a charge with the EEOC qualified as an election of remedies. However, it found them insufficiently persuasive to "overcome the strong policy consideration that the Supreme Court of Ohio has expressed against interpreting Ohio Rev.Code Chapter 4112 in such a way as to prevent plaintiffs from asserting pendent claims for age discrimination under both federal and state law." Reminder, 2006 WL 51129, at *8 (citing Morris, 14 Ohio St.3d at 47, 471 N.E.2d at 474). Further, the Reminder court observed that O.A.C. § 4112-3-01(D)(3), the Administrative Code section that deems an EEOC filing as also being filed with the OCRC, appears under the heading "Time of Filing" and "merely provides a guideline for determining the date upon which a charge is `deemed filed' with the Ohio Civil Rights Commission for determining whether the filing is timely." Id. The Reminder court recognized that the Administrative Code simply reiterates Ohio's status as a deferral state under the ADEA; it says nothing about the effect of such a filing on a plaintiff's election of remedies under Chapter 4112. Id. Thus, the court found it could not equate the mere filing of an age discrimination charge with the EEOC with the election of an administrative remedy under § 4112.05.

The district court in Spengler likewise concluded that the mere filing of a charge with the EEOC did not qualify as an election of remedy pursuant to § 4112.05. 438 F.Supp.2d 805. As in Reminder, the plaintiff had first filed a charge of age discrimination with the EEOC and, after receiving a right to sue letter, filed a complaint in federal court alleging age discrimination in violation of the ADEA and Ohio law. Id. at 806-07. The defendant moved to dismiss the state law claim, arguing that plaintiff's act of filing a charge with the EEOC was equivalent to electing an administrative remedy under § 4112.05. The Spengler court considered the reasoning of the courts that held that the filing of a charge with the EEOC qualified as an election of remedy pursuant to § 4112.05. However, it rejected that reasoning and agreed instead with the reasoning of the Reminder court, namely, "that Morris, Lafferty, and McLaughlin, in connection with the plain language of Chapter 4112 of the Ohio Revised Code point against a finding that a plaintiff's decision to file with the EEOC amounts to an election to pursue a state administrative remedy under § 4112.05." Id. at 811. Further, the Spengler court noted that "[t]hough there are exceptions to the election of remedies doctrine, which would enable a plaintiff to file both state and federal discrimination claims, this Court is not persuaded that the Ohio legislature envisioned a general public that was aware of this subtle nuance which might save their claims." Id.; see also Johnson, 2006 WL 2849781, at *2 ("The law is clear that `filing a charge with the EEOC is not equivalent to electing an administrative remedy under Ohio Rev. Code. Ann. § 4112.05.'") (quoting Reminder, 2006 WL 51129, at *8).

Very recently, when confronted with a motion to dismiss a plaintiff's Ohio law age discrimination claim under substantially identical relevant facts, a district court denied the motion and deferred ruling on the issue. Esparza v. Pierre Foods, No. 1:11 cv874, 923 F.Supp.2d 1099, 2013 WL 550671 (S.D.Ohio Feb. 12, 2013). After undertaking a thorough analysis of the split of persuasive authority on the issue and noting that it was unclear whether the OCRC actually investigated the plaintiffs' claim or had any role other than to be notified of the plaintiff's EEOC charges, the Esparza court stated:

Id. at 1109-10, at *10.

This Court concludes that the line of cases holding that an administrative filing with the EEOC does not serve as an election of remedies under O.R.C. § 4112.05 is better reasoned. Simply put, the administrative remedy available under § 4112.05 requires that an individual file a charge with the OCRC. Lafferty, 1988 WL 19182, at *4; McLaughlin, 1986 WL 16659, at *3-4. The fact that Ohio is a deferral state and that, accordingly, Ohio Admin. Code § 4112-3-01(D)(3) deems a filing with the EEOC to be contemporaneously filed with the OCRC, is insufficient to persuade this Court that the Ohio Supreme Court would deem an administrative filing with the EEOC an election of remedies under O.R.C. § 4112.05, particularly when the Ohio Supreme Court has recognized that the goal of the Supreme Court in Oscar Mayer was to preserve the right of litigants to pursue their discrimination claims under both state and federal law. Morris, 14 Ohio St.3d at 47, 471 N.E.2d at 474.

Having surveyed the relevant body of persuasive case law, this Court concludes that the Ohio Supreme Court would likely rule that filing a charge of age discrimination with the EEOC does not comprise an election of remedies under O.R.C. § 4112.05. Therefore, the Court holds that Plaintiffs' pro se filing of an EEOC charge was not an election of remedies under the Ohio statute. This result acknowledges the complementary nature of federal and state employment discrimination procedures and disarms the "minefield" Ohio's statutory scheme creates for the litigant wanting to pursue a remedy for age discrimination — something this Court finds particularly important when an employee is attempting to navigate that minefield without the assistance of legal counsel.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant's Partial Motion to Dismiss.

IT IS SO ORDERED.