Rozek v. Ampro Computers, Inc.

37 F. Supp. 3d 918, 2014 WL 3828157, 2014 U.S. Dist. LEXIS 107172
CourtDistrict Court, N.D. Ohio
DecidedAugust 4, 2014
DocketCase No. 3:-13CV2655
StatusPublished
Cited by1 cases

This text of 37 F. Supp. 3d 918 (Rozek v. Ampro Computers, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rozek v. Ampro Computers, Inc., 37 F. Supp. 3d 918, 2014 WL 3828157, 2014 U.S. Dist. LEXIS 107172 (N.D. Ohio 2014).

Opinion

ORDER

JAMES G. CARR, Senior District Judge.

This is an employment-discrimination case.

Plaintiff Jerome Rozek alleges his former employer, Ampro Computers, fired him because of his age. He brings claims against Ampro and its Vice President, Elizabeth Campbell, under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., Ohio’s anti-discrimination statutes, and Ohio common law. Jurisdiction is proper under 28 U.S.C. §§ 1331,1332(a)(1), and 1367(a).

Pending is defendants’ motion to dismiss all but Rozek’s ADEA claim. (Doc. 10). For the following reasons, I grant the motion.

Background

Rozek worked at Ampro from December, 2011, to April 8, 2013, when the company terminated his employment. On that date Rozek was sixty-seven years old.

While in Ampro’s employ, Rozek, according to his complaint, “was subjected to a hostile work environment” because of his age. (Doc. 1 at ¶ 13). His coworkers “engaged in conduct that was disrespectful, emotionally abusive, and intimidating relative to Rozek’s age.” (Id. at ¶ 14).

Rozek complained to Campbell, but she responded with “false accusations relative to Rozek’s work product, performance, and his competency to complete tasks.” (Id. at ¶ 16). According to Rozek, Ampro then fired him for “complaining about the hostile work environment.” (Id. at ¶ 22).

In May, 2013, Rozek filed a charge with the Ohio Civil Rights Commission (OCRC), alleging Ampro subjected him “to age remarks” and “discharged [him] due to [his] age, 67, in violation of the [ADEA].” (Doc. 12-1 at 1).

Rozek then filed this suit in December, 2013. Besides raising an ADEA claim, Rozek also alleges Ampro and Campbell violated Ohio’s prohibitions on age-based discrimination in employment.

Count two of the complaint alleges Am-pro discriminated against Rozek on the basis of age, in violation of O.R.C. § 4112.02. In count three, Rozek maintains Ampro violated O.R.C. § 4112.14 by firing him and replacing him with a younger employee.

[921]*921Rozek brings counts four and five under § 4112.99, alleging Ampro fired him for complaining about the hostile work environment.

Finally, count six alleges Ampro’s conduct and that of its personnel amounted to intentional infliction of emotional distress.

Discussion

Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss counts two through six of the complaint, arguing: 1) Rozek’s decision to file a charge with the OCRC precludes him from suing under Ohio’s age-discrimination statutes; 2) the state-law discrimination claims are untimely; and 3) Rozek’s claim for intentional infliction of emotional distress is implausible.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

“This standard demands that the factual allegations raise a right to relief above the speculative level and nudge the claims across the line from conceivable to plausible.” Erie Cnty. v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir.2012). Although the plausibility standard “is not akin to a probability requirement,” a plaintiff must plead “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, supra, 556 U.S. at 678,129 S.Ct. 1937.

A. Ohio Age-Discrimination Claims

1. Prohibitions on Age-Based Employment Discrimination

Like its federal counterpart, Ohio law forbids employers to discriminate against current and prospective employees on the basis of age.

Section 4112.02 of the Ohio Revised Code establishes the basic prohibition against age-based discrimination. That section makes it “an unlawful employment practice” for any employer, “because of the ... age ... of any person, to discharge without just cause ... or otherwise to discriminate against that person with respect to ... tenure, terms, conditions, or privileges of employment.]” O.R.C. § 4112.02(A).

Another provision in the Revised Code, § 4112.14, prohibits a more specific type of discrimination, barring employers from, inter alia, “dischargflng] without just, cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job[.]” O.R.C. § 4112.14(A).

A person seeking redress for either type of discrimination may file a civil lawsuit or an administrative charge with the Ohio Civil Rights Commission.

Three sections of the Revised Code establish a right to sue for age-based discrimination.

Section 4112.02(N) creates a right to sue for the age-discrimination practices that- § 4112.02(A) prohibits. In turn, § 4112.14(B) creates a right to sue for the more specific age-discrimination practices that § 4112.14(A) forbids. Finally, § 4112.99 provides that “[w] ho ever violates [Chapter 4112] is subject to a civil action for damages, injunctive relief, or any other appropriate relief.”

The right to pursue administrative remedies is in § 4112.05. That provision allows an aggrieved person to “file a charge with the [OCRC] alleging that another person has engaged or is engaging in an unlawful discriminatory practice.” O.R.C. § 4112.05(A).

2. Election-of-Remedies Requirement

Ohio law is mostly clear that these remedies are mutually exclusive: an employee [922]*922aggrieved by age-based discrimination may pursue a judicial or an administrative remedy, but not both. Flint v. Mercy Health Partners of SW Ohio, 940 F.Supp.2d 743, 748 (S.D.Ohio 2013); Senter v. Hillside Acres Nursing Ctr., 335 F.Supp.2d 836, 848 (N.D.Ohio 2004).

Sections 4112.02(N) and 4112.14(B) contain explicit élection-of-remedies clauses, barring a person who sues under either statute from also filing an administrative charge. See O.R.C. § 4112.02(N) (“a person who files a civil action under this division is barred ... from instituting a civil action under section 4112.14 ...

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37 F. Supp. 3d 918, 2014 WL 3828157, 2014 U.S. Dist. LEXIS 107172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rozek-v-ampro-computers-inc-ohnd-2014.