Flint v. Mercy Health Partners

940 F. Supp. 2d 743, 2013 WL 1626554, 2013 U.S. Dist. LEXIS 53851
CourtDistrict Court, S.D. Ohio
DecidedApril 16, 2013
DocketCase No. 1:12-cv-826
StatusPublished
Cited by4 cases

This text of 940 F. Supp. 2d 743 (Flint v. Mercy Health Partners) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flint v. Mercy Health Partners, 940 F. Supp. 2d 743, 2013 WL 1626554, 2013 U.S. Dist. LEXIS 53851 (S.D. Ohio 2013).

Opinion

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 [745]*745had 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 plaintiffs 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 [746]*746all 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 ap[747]*747plies 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

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940 F. Supp. 2d 743, 2013 WL 1626554, 2013 U.S. Dist. LEXIS 53851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flint-v-mercy-health-partners-ohsd-2013.