09/28/12 EEOC Response & Exhibits

RESPONSE TO AUGUST 29, 2012
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
LETTER FROM WILMA L. JAVEY - -
REITERATION TO BE NOTIFIED OF ANY/ALL
CONFLICT-OF INTERESTS1

Submitted September 28, 2012

SUBMITTED TO: VIA U.S. PRIORITY MAIL – RECEIPT NO. 0311 2550 0003 1737 3108
United States Department of Labor
U.S. Equal Employment Opportunity Commission (“EEOC”)
ATTN: U.S. Secretary of Labor – Hilda L. Solis
Frances Perkins Building
200 Constitution Ave., NW
Washington, DC 20210

VIA U.S. PRIORITY MAIL – RECEIPT NO. 0311 0240 0001 0055 0473
Ohio Civil Rights Commission (“OCRC”)
Central Office
ATTN: G. Michael Payton, Esq. (Executive Director)
30 East Broad Street, 5th Floor
Columbus, Ohio 43215

EEOC COMPLAINT(S): Charge No. 473-2012-00832 (The Garretson Firm Resolution Group, Inc.)

Charge No. 473-2012-00837 (Messina Staffing/Messina Management Systems)

1
Newsome relied upon legal resources (i.e. such as PREVIOUS EEOC DECISIONS, PREVIOUS OHIO CIVIL RIGHTS
COMMISSION DECISIONS, EEOC Compliance Manual, United States Code Annotated, Supreme Court of the United States decisions,
United States District Court(s) – Ohio decisions, etc.) in the preparation of this Response. Boldface, underline, italics, HIGHLIGHTS,
caps/small caps added for emphasis.

Page 1 of 9

Complainant/Employee: Vogel Denise Newsome (“Newsome”)
Post Office Box 14731
Cincinnati, Ohio 45250
Phone: (513) 680-2922

Respondent(s)/ The Garretson Firm Resolution Group, Inc.
Employer(s): Attn: Sandy Sullivan (Human Resources Representative)
Attn: Matthew Garretson (Founder/Chief Executive Officer)
7775 Cooper Road
Phone: (513) 575-7167 or (513) 794-0400/(888) 556-7526
County: Hamilton County, Ohio
**Ohio Office Having 50+ employees

Messina Staffing/Messina Management Systems
Attn: Vince Messina (President)
11811 Mason-Montgomery Road
Cincinnati, Ohio 45249
(513) 774-9187

COMES NOW Complainant Vogel Denise Newsome (“Newsome) and submits this her “RESPONSE TO

THE AUGUST 29, 2012 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LETTER FROM WILMA

L. JAVEY - - REITERATION To Be NOTIFIED Of ANY/ALL CONFLICT-OF-INTERESTS”

(“RT082912EEOCLetter”) in regards to the above referenced Equal Employment Opportunity Commission

(“EEOC”) Complaints and the

“OFFICIAL COMPLAINT/CHARGE OF DISCRIMINATION FILED OF AND AGAINST
THE GARRETSON FIRM RESOLUTION GROUP INC. AND/OR MESSINA
STAFFING/MESSINA MANAGEMENT SYSTEMS WITH UNITED STATES DEPARTMENT
OF LABOR - UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION –
CINCINNATI AREA OFFICE and OHIO CIVIL RIGHTS COMMISSION – CENTRAL OFFICE;
AND REQUEST FOR COMMISSIONER CHARGE TO BE ISSUED SUBMITTED FOR FILING
ON APRIL 30, 2012” (hereinafter “Official Complaint/Charge Of Discrimination”)

in these actions.

Attached please find a copy of the EEOC’s letter dated August 29, 2012, from Wilma L. Javey (Director –

Cincinnati, Ohio Area Office) at EXHIBIT “A” attached hereto and incorporated by reference.

In accordance with the statutes and laws governing said matters, this instant “RT082912EEOCLetter” is

submitted to support Newsome’s TIMELY response as well as for purposes of PRESERVING issues raised in the

“Official Complaint/Charge Of Discrimination” and those in her subsequent filings/responses.

Secretary Hilda Solis, as you know, Newsome DEMANDED “to be advised of the „STATUS‟ of the

MANDATORY Deferral of this instant Equal Employment Opportunity Commission Complaint/Charge to the

Page 2 of 9

Ohio Civil Rights Commission pursuant to 29 § 1601.13 and other statutes/laws governing said matters. For

instance 29 § 1604.8 addresses how matters are to be handled that involves claims falling within the jurisdiction of

the EEOC and the Ohio Civil Rights Commission” and provided a link of the referenced Statute (29 § 1604.8)

should there be any questions at: http://www.slideshare.net/VogelDenise/29-cfr-16048-

processingcompltateagency-highlighted; however, to date, you have DELIBRATELY with MALICIOUS intent

FAILED to DEFER the Complaint(s) to the Ohio Civil Rights Commission. As a matter of FEDERAL

Statutes/Laws, Secretary Solis, you are MANDATORILY required to refer/defer Newsome’s Complaints/Charges:

Charge No. 473-2012-00832 (The Garretson Firm Resolution Group, Inc.)

Charge No. 473-2012-00837 (Messina Staffing/Messina Management Systems)

to the Ohio Civil Rights Commission. In further support of this instant “RT082912EEOCLetter” the following

FACTS remain UNDISPUTED and, therefore, sustains that yours and the EEOC’s actions are ARBITRARY

and/or CAPRICIOUS Newsome states:

a) That the Equal Employment Opportunity Commission HAS Jurisdiction over Newsome’s
Charge/Complaint and that it has been TIMELY FILED.

b) That DEFERRAL of Newsome’s Charges/Complaints to the Ohio Civil Rights Commission
because it involves claim(s) of AGE DISCRIMINATION, etc.; therefore, deferral is
MANDATORY and NOT a discretionary act to be determined by neither you NOR the
EEOC. Nevertheless, the EEOC has WITH MALICIOUS intent FAILED to defer
Newsome’s Charge/Complaint to the Ohio Civil Rights Commission which has cause
Newsome IRREPABLE injury/harm and deprived her rights secured/guaranteed under the
Civil Rights Act, United States Constitution and other statutes/laws governing said matters.
Moreover, depriving Newsome EQUAL protection of the laws, EQUAL privileges and
immunities under the laws and DUE PROCESS of laws.

c) Secretary Solis, while you are DELIBERATELY and with MALICIOUS intent attempting
to get Newsome to file a Civil Action in Federal Court in regards to her Complaints/Charges,
said Court(s) LACK jurisdiction act as stated in Newsome’s June 21, 2012 pleading entitled,

ADMINISTRATIVE PROCEDURE ACT REQUESTS: MANDATORY
DEFERRAL TO THE OHIO CIVIL RIGHTS COMMISSION PURSUANT TO
29 CFR §1601.13/1604.8 AND OTHER GOVERNING STATUTES/LAWS,
MANDATORY COMMISSIONER CHARGE TO ISSUE PURSUANT TO 29
CFR § 1601.6 AND OTHER GOVERNING STATUTES/LAWS, AND
MANDATORY FINDINGS OF FACT CONCLUSION OF LAW REQUESTED
PURSUANT TO OHIO REVISED CODE § 2315.19/FEDERAL RULES OF
CIVIL PROCEDURE RULE 52 AND OTHER GOVERNING
STATUTES/LAWS – COURT’S LACK OF JURISDICTION FOR FAILURE
TO DEFER; REITERATION OF OBJECTIONS AND REITERATION FOR
REQUESTS TO BE ADVISED OF ALL “CONFLICT-OF-INTERESTS”
(“RT06-14-12EEOCLetter”)

Page 3 of 9

A copy of which may also be obtained from the Internet at:
http://www.slideshare.net/VogelDenise/062112-response-to-eeoc-061412-letter

Secretary Solis, according to the United States Postal Service records, supporting delivery:
http://www.slideshare.net/VogelDenise/062112-usps-proof-of-mailing-receipt-hilda-solis-g-
michael-payton

Wherein Newsome incorporates by reference the same defenses set forth in her June 21,
2012 pleading and previous filings.

Morris v. Kaiser Engineers, Inc., 471 N.E.2d 471 (Ohio,1984) – State filing is a
mandatory prerequisite to Age Discrimination in Employment Act action. Age
Discrimination in Employment Act of 1967, § 14, 29 U.S.C.A. § 633.

Piecuch v. Gulf & Western Mfg. Co., 626 F.Supp. 65 (N.D.Ohio.E.Div.,1985) -
District court lacked jurisdiction over age discrimination action, where plaintiff
had not filed his charge with Ohio Civil Rights Commission. Age Discrimination
in Employment Act of 1967, § 14(b), 29 U.S.C.A. § 633(b).

Furthermore see the following case law:

Ruth Dunn vs. Medina General Hospital, 917 F.Supp. 1185 (N.D. Ohio 1996) -
[3] Ohio is deferral state within meaning of statute mandating that in deferral
states, i.e. states where established agencies are empowered to remedy age
discrimination in employment, person may not bring suit in federal court under
ADEA unless person has commenced proceeding with appropriate state agency.
Age Discrimination in Employment Act of 1967, § 14(b), 29 USCA § 633(b). . . .

[3] The 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. Oscar Mayer and Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60
L.Ed.2d 609 (1979) (emphasis added). . . .Ohio is a deferral state within the
meaning of § 14(b) of the ADEA. Brownlow v. Edgcomb Metals Co., 573 F.Supp.
679, 683 (N.D.Ohio 1983).

EXHIBIT “B” attached hereto and incorporated by reference as if set forth in full herein.

d) Under the Federal Rules of Civil Procedure (“FRCP”) Rule 11, Newsome is PROHIBITED
from bring a Lawsuit in which it is KNOWN to her as well as the EEOC and parties involved
that the Court(s) LACK Jurisdiction. Furthermore, Newsome as a matter of the FRCP is
MANDATORILY required to MITIGATE damages and the filing of a Lawsuit in which you
(Secretary Solis) and the EEOC is FULLY aware of CANNOT be filed for LACK of
Jurisdiction because of your DELIBERATE and MALICIOUS FAILURE to defer/refer the
Complaints/Charges regarding this instant matter to the Ohio Civil Rights Commission.

e) UNDISPUTED are the statutes/laws governing said matters supporting that the EEOC is
MANDATORILY required to defer Newsome’s Complaints/Charges to the Ohio Civil
Rights Commission for COST-EFFICIENT purposes and handling. However, Secretary
Solis, you and the EEOC have FAILED to comply and are in violation of the Administrative
Procedure Act and other statutes/laws governing said issues. The Ohio Federal Court(s) are
clear on the MANDATORY requirements of DEFERRAL/REFERRAL. See for instance the
following case(s):

Page 4 of 9

Alsup vs. International Union of Bricklayers, 679 F.Supp. 716 (N.D. Ohio 1987) -
[11] In “deferral states” such as Ohio, where the EEOC defers to the state
agency established to investigate charges of discrimination, an EEOC charge
must be filed within 300 days after the alleged unlawful act. Civil Rights Act of
1964, § 706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1).

[12] When a charge of discrimination is submitted to both the Equal
Employment Opportunity Commission and state agency in a “deferral state,” the
EEOC will not formally file its charge of discrimination until after the state
agency has terminated its proceedings or 60 days have elapsed since filing of state
administrative charge, whichever occurs earlier; therefore, state administrative
charge of discrimination must generally be filed within 240 days of the alleged
unlawful practice in order to preserve claimant's right to file a Title VII lawsuit in
federal court. Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C.A. §
2000e–5(f)(1).

See EXHIBIT “C” attached hereto and incorporated by reference as if set forth in full
herein. In the May 9, 2012 correspondence from the Ohio Civil Rights Commission’s
Sandra R. Aukeman, it ERRONOUSLY stated that Newsome’s Complaint/Charge was
UNTIMELY filed in that it applied the 180-DAY/SIX MONTHS statute of limitations,
stating,

"The Ohio Civil Rights Act, Ohio Revised Code Chapter 4112, requires
that a charge of discrimination be filed within six months of the date of harm and
therefore the charge is deemed untimely for us to pursue.
Your letter to us indicates both the Ohio Civil Rights Commission and the
U.S. Equal Employment Opportunity Commission received identical
documentation. Charges may be filed with the U.S. Equal Employment
Opportunity Commission within 300 days from the date of harm and therefore could
be considered timely filed with them.
Our agency, the Ohio Civil Rights Commission, is the state admiinistrative
law enforcement agency that administers the Ohio Civiil Rights Act, Ohio Revised
Code Chapter 4112 and we are responsible for investigating charges of RACE,
color, sex, national origin, military status, disability, AGE and religion
discrimination in the areas of employment . . ."

See EXHIBIT “D” attached hereto and incorporated by reference as if set forth in full
herein. The Supreme Court of the United States’ decision in Oscar Mayer & Co. vs. Joseph
Evans, 99 S.Ct. 2066 (1979) is clear that:

[2] Though the Age Discrimination in Employment Act makes resort to
administrative remedies mandatory in states with agencies empowered to
remedy age discrimination in employment, a person aggrieved by alleged age
discrimination is not required by the ADEA to commence the state proceedings
within the time limit specified by state law. Age Discrimination in Employment
Act of 1967, §§ 7(c), 14(b), 29 U.S.C.A. §§ 626(c), 633(b). . .
[1][2] We hold that that § 14(b) mandates that a grievant not bring suit
in federal court under § 7(c) of the ADEA until he has first resorted to
appropriate state administrative proceedings. We also hold, however, that the
grievant is not required by § 14(b) to commence the state proceedings within
time limits specified by state law. In light of these holdings, it is not necessary to
address the question of the circumstances, if any, in which failure to comply with
§ 14(b) may be excused.

[12] Even though the 120-day . . .statute of limitations on age discrimination
claims had run, complainant could comply with the mandatory requirement of
the Age Discrimination in Employment Act that he first resort to state

Page 5 of 9

administrative remedies by filing a signed complaint with the . . . State Civil
Rights Commission. Age Discrimination in Employment Act of 1967, § 14(b), 29
U.S.C.A. § 633(b). . . .

[12] We therefore hold that respondent may yet comply with the
requirements of § 14(b) by simply filing a signed complaint with the . . . State
Civil Rights Commission. That Commission must be given an opportunity to
entertain respondent's grievance before his federal litigation can continue. . . .
Section 14(b) of the Age Discrimination in Employment Act of 1967, 81
Stat. 601, 607, 29 U.S.C. § 633(b), explicitly states that "no suit may be brought"
under the Act until the individual has resorted to the appropriate state remedies. .
. this means that his suit should not have been brought and should now be
dismissed.

EXHIBIT “D” attached hereto and incorporated by reference as if set forth in full herein.
Even the SIXTH Circuit Court of Appeals has decided said issue to support that the Ohio
Civil Rights Commission ERRED in its failure to retain jurisdiction over Newsome’s
“Official Complaint/ Charge Of Discrimination” alleging 180-day statute had expired with
KNOWLEDGE and/or should have known that it was subject to the 240-day statute of
limitations.

Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614 (6th Cir. 1983) -
United States Supreme Court decision interpreting statutory Title VII filing
requirement to preclude charges being filed with Equal Employment
Opportunity Commission in deferral states until 60 days after state fair
employment agency has received notice of allegations may not be applied
retroactively, and therefore instant action, where plaintiff initiated complaint with
EEOC and state civil rights commission 244 days after he was terminated, was
timely filed. Civil Rights Act of 1964, §§ 701 et seq., 706(b), as amended, 42
U.S.C.A. §§ 2000e et seq., 2000e-5(c).

Nevertheless, here are approximately FIVE (5) MONTHS later and Secretary Solis, you and
the EEOC have FAILED to defer/refer Newsome’s Complaint/Charges to the Ohio Civil
Rights Commission.

f) It is UNDISPUTED that United States of America President Barack Obama is also an
Attorney (i.e. licensed to practice law – in fact CONSTITUTIONAL Law as he likes to
share) and has KNOWLEDGE that Newsome’s arguments are SOUND in statutes/laws
governing said issues.

g) It is UNDISPUTED that G. Michael Payton (Executive Director of the Ohio Civil Rights
Commission) is also an attorney. Therefore, it is NOT clear why Secretary Solis, President
Barack Obama, and Mr. Payton have not resolved the issues presented to get the
Complaints/Charges filed with the Ohio Civil Rights Commission.

h) Secretary Solis, you DO NOT dispute the ERROR by the Ohio Civil Rights Commission;
however, you have FAILED to defer/refer this matter to the Ohio Civil Rights Commission
although there is EVIDENCE that the EEOC has KNOWLEDGE of the MANDATORY
“Deferral/Referral” requirements. See For instance Pitts vs. Dayton Power & Light Co.:

Arthur Pitts vs. Dayton Power & Light Co., 748 F.Supp. 527 (1989) - [1]
Terminated employee met requirements for bringing of action under the Age
Discrimination in Employment Act (ADEA) when the Equal Employment
Opportunity Commission referred the employee's charge to the Ohio Civil Rights
Commission (OCRC) to meet the referral requirements of the ADEA, and the
employee commenced the action under the ADEA more than 60 days after

Page 6 of 9

proceedings were commenced with the OCRC. Age Discrimination in
Employment Act of 1967, §§ 14, 14(b), 29 U.S.C.A. §§ 633, 633(b). . . .

Section 633(b) of Title 29 of the United States Code provides in
pertinent part:

In the case of an alleged unlawful practice occurring in a State
which has a law prohibiting discrimination in employment
because of age and establishing or authorizing a State authority
to grant or seek relief from such discriminatory practice, no suit
may be brought under Section 626 of this title before the
expiration of sixty days after proceedings have been
commenced under the State law, unless such proceedings have
been earlier terminated....

the EEOC referred Plaintiff's EEOC charge to the OCRC in order to meet the
referral requirements of § 14 of the ADEA (Doc. # 14, Exh. A) . . .

See EXHIBIT “F” attached hereto and incorporated by reference as if set forth in full herein.

i) Secretary Solis you and the EEOC neither DISPUTE that said issue(s) was raised and
preserved through Newsome June 8, 2012 filing entitled,

REQUEST FOR RECONSIDERATION OF DISMISSAL AND NOTICE OF
RIGHTS, NOTIFICATION OF ADMINISTRATIVE PROCEDURE ACT
VIOLATIONS, REQUEST FOR EEOC‟S “WRITTEN” DETERMINATION
– FINDINGS OF FACT AND CONCLUSION OF LAW, REQUEST FOR
“WRITTEN” TITLE VII INTERPRETATION/OPINION, REQUEST FOR
DEFERRAL TO THE OHIO CIVIL RIGHTS COMMISSION, REQUEST
FOR STATUS OF COMMISSION CHARGE TO ISSUE; OBJECTIONS TO
EMPLOYMENT OPPORTUNITY COMMISSION‟S MAY 31, 2012
DISMISSAL AND NOTICE OF RIGHTS; RESPONSE TO OHIO CIVIL
RIGHTS COMMISSION‟S LETTER DATED MAY 9, 2012 REGARDING
“YOUR INQUIRY REGARDING POTENTIAL CHARGE OF
DISCRIMINATION;” and 2ND REQUEST TO BE ADVISED OF ALL
“CONFLICT-OF-INTERESTS” (hereinafter “RFROD&NOR. . .”)

A copy which may also be obtained from the Internet:
http://www.slideshare.net/VogelDenise/060812-eeoc-response-final-13269482

Newsome TIMELY, PROPERLY and ADEQUATELY preserved this issue and set forth
demand and RIGHTS to have this instant EEOC Complaint/Charge deferred to the Ohio
Civil Rights Commission through her “RFROD&NOR. . .” See at Pages/Paragraphs: 7/¶ 8,
8/¶ 13, 11/¶ 24, 15/¶33, 18/¶42, 20/¶49 and Pages 29-30 IV.

REQUEST FOR DEFFERAL TO THE OHIO CIVIL RIGHTS
COMMISSION:

http://www.slideshare.net/VogelDenise/060812-eeoc-response-final-13269482

https://secure.filesanywhere.com/fs/v.aspx?v=8a70678e5d5f70afac9c

j) Newsome hereby DEMANDS that the Equal Employment Opportunity Commission’s
Secretary of Labor Hilda Solis (i.e. NOT the Little “Want-To-BeChiefs” as Wilma L.
Javey) advise her in “WRITING” as to whether or not the instant Complaint/Charge brought
against Respondents (The Garretson Firm Resolution Group Inc. and Messina

Page 7 of 9

Staffing/Messina Management Systems) has been DEFERRED to the Ohio Civil Rights
Commission as MANDATORILY required by STATUTES/LAWS.

Secretary Solis you and the EEOC have a MANDATORY duty/obligation to MITIGATE
costs in the handling of Newsome’s Complaints/Charges. Have you and the EEOC
done so? NO! Instead, Secretary Solis, you insist on SUBJECTING Newsome to
further INJURY/HARM!

k) In REITERATING Newsome’s DEMAND at Page 7 and Paragraph 7 of “RT06-14-
12EEOCLetter,” Newsome DEMANDS to be advised of the:

“STATUS” of the MANDATORY issuance of COMMISSIONER CHARGE
of this instant Equal Employment Opportunity Commission Complaint/Charge
pursuant to 29 CFR § 1601.6 and other statutes/laws governing said matters.
Newsome’s Complaint/Charge and the issues brought through
pleadings/documents provided clearly support the issuance of COMMISSIONER
Charge. In support of the Equal Employment Commission's KNOWLEDGE that
Newsome’s Complaint/Charge and request set forth therein for the issuance of
COMMISSIONER CHARGE, information may be obtained at the following
links:

http://www.slideshare.net/VogelDenise/commissioner-charge-systematic-task-
force-reporteeoc-highlighted

l) Secretary Solis it is UNDISPUTED that in accordance with the EEOC Guidelines governing
said matters that Newsome is ENTITLED to IMMEDIATE payment of Back Wages of
approximately $29,400 and does NOT have to wait until the completion of this matter;
moreover, yours, the EEOC and President Barack Obama’s efforts to wait until she has
EXHAUSTED her UNEMPLOYMENT Benefits!

m) UNDISPUTED is the fact that the record evidence supports/sustains “INDIVIDUAL” and
“SYSTEMATIC” DISCRIMINATORY practices leveled AGAINST Vogel Denise
Newsome and, therefore, warranting COMMISSIONER CHARGE to issue pursuant to 29
CFR § 1601.6 and other statutes/laws governing said matters . Please advise
Newsome whether or not the COMMISSIONER CHARGE that is also MANDATORILY
required to issue has been implemented. See also “RFROD&NOR. . .” Page 38 at Section
VII (REQUEST OF STATUS OF COMMISSIONER CHARGE TO ISSUE) as well as
Pages 4 – 6 at Section I.

EEOC Document: http://www.slideshare.net/VogelDenise/commissioner-
charge-systematic-task-force-reporteeoc-highlighted

WHEREFORE, PREMISES considered, Newsome is DEMANDING that Secretary of Labor Hilda Solis

provide her with a “WRITTEN RESPONSE” by TUESDAY, October 16, 2012, to this instant submittal and

advises that she does NOT waive any rights to have this matter DEFERRED to the Ohio Civil Rights Commission

and DEMANDS that the COMMISSIONER CHARGE issue in this matter.

Page 8 of 9

Dunn v. Medina General Hosp., 917 F.Supp. 1185 (1996)
68 Empl. Prac. Dec. P 44,208

2 Cases that cite this headnote

[2] Administrative Law and Procedure
Exhaustion of Administrative Remedies
Civil Rights
Exhaustion of State or Local Remedies
Employee exhausted her administrative remedies,
and thus fulfilled necessary jurisdictional
prerequisites for ADEA retaliation claim, where
Employee brought action against employer for age she filed retaliation charge with Ohio Civil Rights
discrimination under Age Discrimination in Employment Act Commission (OCRC) and waited 60 days before
(ADEA) and Ohio law, and against hospital and individuals filing suit in federal court; employee was not
for intentional infliction of emotional distress under Ohio required to pursue OCRC claim to its conclusion.
law. On motion by hospital and individuals for summary Age Discrimination in Employment Act of 1967,
judgment, the District Court, Economus, J., held that: (1) § 14(b), 29 U.S.C.A. § 633(b).
90–day limitations period applied to all ADEA actions filed
after enactment of Civil Rights Act of 1991; (2) employee
exhausted her administrative remedies, and thus fulfilled [3] Civil Rights
necessary jurisdictional prerequisites for ADEA retaliation Deferral to State Agencies; Time
claim, where she filed retaliation charge with Ohio Civil Ohio is deferral state within meaning of statute
Rights Commission (OCRC) and waited 60 days before filing mandating that in deferral states, i.e., states where
suit in federal court; (3) 180–day statute of limitations applied established agencies are empowered to remedy
to Ohio age discrimination claim; (4) even if ADEA claim age discrimination in employment, person may
were not timebarred, employee failed to establish prima not bring suit in federal court under ADEA
facie hostile environment claim, since no respondeat superior unless person has commenced proceeding with
liability existed on part of employer; (5) even if ADEA appropriate state agency. Age Discrimination in
claim were not timebarred, employee failed to establish prima Employment Act of 1967, § 14(b), 29 U.S.C.A.
facie hostile environment claim, since no materially adverse § 633(b).
change in terms or conditions of employee's employment
occurred; and (6) evidence was insufficient to support claim
that supervisors engaged in extreme and outrageous conduct [4] Civil Rights
that would support finding of liability for intentional infliction Existence of Other Remedies; Exclusivity
of emotional distress.
While it was intent of Congress to encourage
Motion granted. resolution of age discrimination disputes
on state level through recourse to state
administrative remedies, Congress also intended
West Headnotes (19) to make remedies of ADEA complementary and
supplementary to state administrative remedies,
[1] Civil Rights and not mutually exclusive. Age Discrimination
Time for Proceedings; Limitations in Employment Act of 1967, § 2 et seq., 29
U.S.C.A. § 621 et seq.
Ninety-day limitations period applies to all
ADEA actions filed after enactment of Civil
Rights Act of 1991. Age Discrimination in
Employment Act of 1967, §§ 2 et seq., 7(e), 29 [5] Civil Rights
U.S.C.A. §§ 621 et seq., 626(e). Time for Proceedings; Limitations

EXHIBIT
"B"

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1


Under Ohio law, general six-year statute of
limitations applies to gender discrimination
claims, since no provision in chapter governing [9] Civil Rights
Civil Rights Commission, other than provision Harassment; Work Environment
authorizing civil action for damages for violations
Hostile work environment allegations are equally
of chapter, creates civil liability for gender-based
cognizable in age discrimination context as well
claims. Ohio R.C. §§ 4112.01 et seq., 4112.99.
as in situations involving title 7 claimants. Age
Discrimination in Employment Act of 1967, § 2 et
seq., 29 U.S.C.A. § 621 et seq.; Civil Rights Act
[6] Civil Rights of 1964, § 701 et seq., as amended, 42 U.S.C.A.
Employment Practices § 2000e et seq.
Statutes
General and Special Statutes
Under Ohio law, 180–day statute of limitations [10] Civil Rights
applied to age discrimination claim, since specific Harassment; Work Environment
provision in chapter governing Civil Rights Hostile work environment theory requires that
Commission set forth such limitations period, employee show that: (1) he or she was member
and prevailed over conflicting provision setting of protected class; (2) he or she was subject
forth general six-year statute of limitations for to unwelcome harassment; (3) harassment was
violations of chapter. Ohio R.C. §§ 4112.01 et prompted solely because of employee's age;
seq., 4112.02(N), 4112.99. (4) harassment affected term, condition, or
privilege of employment; and (5) existence of
respondeat superior liability. Age Discrimination
in Employment Act of 1967, § 2 et seq., 29
[7] Civil Rights U.S.C.A. § 621 et seq.; Civil Rights Act of 1964,
Hostile Environment; Severity, § 701 et seq., as amended, 42 U.S.C.A. § 2000e
Pervasiveness, and Frequency et seq.
Hostile work environment requires existence
of severe or pervasive and unwelcome
verbal or physical harassment because of [11] Civil Rights
employee's membership in protected class. Age Vicarious Liability; Respondeat Superior
Discrimination in Employment Act of 1967, § 2 et No respondeat superior liability existed on
seq., 29 U.S.C.A. § 621 et seq.; Civil Rights Act part of employer in connection with alleged
of 1964, § 701 et seq., as amended, 42 U.S.C.A. harassment based on age, and employee thus
§ 2000e et seq. failed to establish fifth element of ADEA hostile
environment claim; employee did not complain
about alleged harassment and, when co-worker
[8] Civil Rights brought similar concerns to employer's attention,
Harassment; Work Environment offending supervisor was sent to management
No reasons exists to differentiate between age sensitivity training seminars. Age Discrimination
discrimination claimants and members of other in Employment Act of 1967, § 2 et seq., 29
protected groups for purposes of bringing hostile U.S.C.A. § 621 et seq.
work environment claim, since there is virtually
little or no difference between ADEA and Title
VII. Age Discrimination in Employment Act of
1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Civil [12] Civil Rights
Rights Act of 1964, § 701 et seq., as amended, 42 Vicarious Liability; Respondeat Superior
U.S.C.A. § 2000e et seq.



To show respondeat superior liability in co- whether employee has established prima
worker discrimination cases, employee must facie case of retaliation, involved objective
prove that employer, through its agents or determination of whether conduct of employee's
supervisory personnel, knew or should have supervisor and coworkers created such difficult
known of charged harassment and failed to or unpleasant working conditions that reasonable
implement prompt and appropriate corrective person in employee's shoes could not tolerate
action. Age Discrimination in Employment Act of them. Age Discrimination in Employment Act of
1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Civil 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.
Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000e et seq.
[16] Damages
Labor and Employment
[13] Civil Rights Under Ohio law, negligent infliction of emotional
Practices Prohibited or Required in General; distress is not recognized in employment context.
Elements
Elements of prima facie case of retaliation are: (1) 1 Cases that cite this headnote
that employee engaged in protected activity; (2)
that exercise of employee's protected rights was [17] Damages
known to employer; (3) that employer thereafter Elements in General
took employment action adverse to employee;
Under Ohio law, to support claim for tort of
and (4) that there was causal connection between
intentional infliction of emotional distress, four
protected activity and adverse employment
elements must be proved: (1) that actor either
action. Age Discrimination in Employment Act
intended to cause emotional distress or knew
of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.
or should have known that actions taken would
result in serious emotional distress plaintiff; (2)
that actor's conduct was extreme and outrageous,
[14] Civil Rights that it went beyond all possible bounds of
Particular Cases decency, and that it can be considered as utterly
Civil Rights intolerable in civilized community; (3) that
Discipline actor's actions were proximate cause of plaintiff's
No materially adverse change in terms or psychic injury; and (4) that mental anguish
conditions of employee's employment occurred, suffered by plaintiff is serious and of nature that
and employee thus failed to establish third no reasonable person could be expected to endure
element of ADEA retaliation claim; employee it.
could not recall if her discipline was result of
her mistakes, employee could not recall jokes
about old persons allegedly made by co-workers,
and employee was not demoted, threatened with [18] Damages
dismissal, or forced to take cut in pay. Age Nature of Injury or Threat
Discrimination in Employment Act of 1967, § 2 Damages
et seq., 29 U.S.C.A. § 621 et seq. Humiliation, Insults, and Indignities
Under Ohio law, liability for intentional infliction
of emotional distress does not extend to mere
[15] Civil Rights insults, indignities, threats, annoyances, petty
Adverse Actions in General oppressions, or other trivialities.
Determining whether there was material
adverse change in terms or conditions of
employment, for purposes of determining [19] Damages



Mental Suffering and Emotional Distress informed Ms. Dunn that she had ninety days within which to
Under Ohio law, assuming that claim for file an action in federal court.
intentional infliction of emotional distress is
In April, 1993, Ms. Dunn filed a second charge with the
recognized in employment context, evidence was
OCRC and the EEOC alleging retaliation by the Hospital.
insufficient to support employee's claim that
The OCRC found probable cause that the Hospital retaliated
supervisors engaged in extreme and outrageous
against her.
conduct that would support finding of liability;
although employee complained of comments On November 15, 1994, Ms. Dunn filed this action
related to her age, exclusion from office parties, alleging causes of action under the Age Discrimination in
increase in work load, cursing by supervisor, Employment Act (ADEA), 42 U.S.C. § 1983, as well as age
and dumping of her birthday cake into trash, discrimination and intentional infliction of emotional distress
employee did not go to any medical provider claims under Ohio law. Some of these claims have been
other than for annual check-up, and employee did dismissed and thus the claims that are before the Court at this
not miss any work because of stress. time are the following: Count One (ADEA as to the Hospital),
Count Two (alleged violation by the Hospital of Ohio Revised
Code §§ 4112.02 and 4112.99), and Count Three (intentional
infliction of emotional distress as to all defendants). 1
Attorneys and Law Firms In her complaint and affidavit, Ms. Dunn claims she
experienced numerous actions and comments related directly
*1188 Edward L. Gilbert, Law Offices Of Edward L.
to her age around the time the new patient accounts manager,
Gilbert, Akron, OH, for Ruth Ann Dunn.
Defendant Darla Kennedy, began working at the Hospital.
Joel R. Hlavaty, Richard V. Whelan, Jr., Thompson, Hine & These included the older workers in the department being
Flory, Cleveland, OH, for Medina General Hospital, Darla excluded from office parties, additional duties assigned to
Kermendy, Kenneth Milligan. older workers which were not assigned to the younger
workers, auditing of the older employees' work by the
Stephanie Dutchess Trudeau, Ulmer & Berne, Cleveland, younger workers, and other preferential treatment of the
OH, for Stephanie Dutchess Trudeau. younger workers. In essence she claims that her working
environment consisted of preferential treatment of younger
Opinion
workers and demeaning treatment of older workers.

MEMORANDUM OPINION *1189 The Defendant has moved for summary judgment
on numerous grounds which the Court will address as raised
ECONOMUS, District Judge. within the motion.

This matter is before the Court on motion by the Defendants I. Plaintiff's First EEOC Charge is Time–Barred
for summary judgment. Having reviewed the record and
considered the facts in a light most favorable to the non- The Hospital first argues that Ms. Dunn's ADEA claim for
movant Plaintiff, the Court will grant summary judgment. actions complained of in her first complaint to the EEOC is
time-barred. The Hospital cites to 29 U.S.C. § 626(e), which
Plaintiff, Ruth Dunn, has been employed by the provides as follows:
Medina General Hospital (Hospital) as a commercial
biller since 1969. On June 25, 1992, Ms. Dunn filed If a charge filed with the Commission
a charge of age discrimination with the Ohio Civil under this chapter is dismissed or
Rights Commission (OCRC) and the Equal Employment the proceedings of the Commission
Opportunity Commission (EEOC). In November of 1992, are otherwise terminated by the
the OCRC found that it was not probable that the Hospital Commission, the Commission shall
had discriminated against her and dismissed the charge. On notify the person aggrieved. A civil
February 24, 1993, the EEOC also dismissed the charge and action may be brought under this
section by a person defined in



section 630(a) of this title against the Court. The Second, Fifth, and Eighth Circuits have concluded
respondent in the charge within 90 that § 626(e) applies to actions such as this one. See Vernon
days after the date of the receipt of v. Cassadaga Valley Cent. School Dist., 49 F.3d 886, 889–
such notice. 91 (2d Cir.1995); St. Louis v. Texas Worker's Compensation
Commission, 65 F.3d 43, 45–46 (5th Cir.1995); Garfield v.
On February 24, 1993, the EEOC notified Ms. Dunn by J.C. Nichols Real Estate, 57 F.3d 662, 664–65 (8th Cir.), cert.
letter of her right to sue. The letter contained the following denied, 516 U.S. 944, 116 S.Ct. 380, 133 L.Ed.2d 303 (1995).
language:
[1] Each of the above cases held that the Civil Rights
A lawsuit under the Age Act of 1991 amended 29 U.S.C. § 626(e) by eliminating
Discrimination in Employment Act the two or three year limitations period and that § 626(e)
(“ADEA”) ordinarily must be filed now provides the exclusive limitations period for claims
within two years of the date of brought under the ADEA. Both the language and legislative
discrimination alleged in the charge. history of § 626(e) support this conclusion. The statute states
On November 21, 1991, the ADEA clearly that a complainant may file suit within ninety days
was amended to eliminate this two after the date of the receipt of a right-to-sue letter from
year limit. An ADEA lawsuit may now the EEOC. The legislative history indicates that the two or
be filed any time from 60 days after a three year statute of limitations incorporated into the former
charge is filed to 90 days after receipt § 626(e) does not survive the passage of the 1991 Act. In
of notice that EEOC has completed the 1991 Act, Congress deleted from the former § 626(e)
action on the charge. the express reference to § 255 of the Portal–to–Portal Pay
Act which provided for the two or three year limitations
Because Ms. Dunn did not file her complaint until November
period. This Court agrees with the interpretation of the
15, 1994, the Hospital argues that the claim is now time-
legislative history of § 626(e) set forth in *1190 McCray
barred by § 626(e).
v. Corry Mfg. Co., 872 F.Supp. 209 (W.D.Pa.1994), aff'd 61
Plaintiff argues that this claim is governed by the statute of F.3d 224 (3rd Cir.1995) where the court concluded that the
limitations in effect under the ADEA prior to the enactment legislative history “demonstrates that the purpose of the 1991
of the Civil Rights Act of 1991. Under the rules in place Amendment to § 626(e) was to create a ninety-day window
prior to the Civil Rights Act of 1991, a plaintiff in an age within which plaintiffs must file suit under the ADEA or lose
discrimination case generally had two years after the action their right to do so.”
accrued to file a claim, and three years if the claim alleged a
The analysis of the Vernon, St. Louis, and Garfield decisions
“willful violation.” Plaintiff further argues that the language
is persuasive. Further, the Simmons case relied upon by
of the statute is permissive and provides merely that an ADEA
Plaintiff was accurately criticized in McCray and that case
suit could, but did not have to be filed within 90 days.
provides a helpful analysis of this issue. The language of §
The word “may” in § 626(e), Plaintiff contends, indicates
626(e), the legislative history, and the weight of authority
the intent of Congress to supplement rather than replace the
among the courts all support the conclusion that the statute of
three-year limitations period. Thus, as long as her suit was
limitations of § 626(e) is applicable to Plaintiff's first ADEA
filed within the three-year statute of limitations for willful
claim. Ms. Dunn was required to file her action within ninety
violations, her ADEA action is not time-barred. Plaintiff
days of having received the February 23, 1993 right-to-sue
relies on Simmons v. Al Smith Buick Co., Inc., 841 F.Supp.
notice. She did not do so. Consequently, this claim is time-
168 (E.D.N.C.1993) as authority that the 90–day limit was not
barred.
intended to be the only limit in ADEA cases and to replace
the previous two and three year rules, and urges this Court to II. Exhaustion of Administrative Remedies
adopt its reasoning.
[2] As to Ms. Dunn's second EEOC charge for retaliation,
The issue is therefore whether the amended statute of the Hospital contends that the claim must be dismissed
limitations period applies to all civil actions filed after the because she has failed to exhaust her administrative
enactment of the 1991 Civil Rights Act. The Sixth Circuit remedies. Upon the EEOC's denial of her first claim of age
has not addressed this issue but a review of the law of the discrimination, Ms. Dunn returned to work. She subsequently
circuits which have considered it will serve as a guide to this



filed a second charge with the OCRC for retaliation. In
accordance with the relevant filing guidelines, she filed her III. Plaintiff's Ohio Age Claims are Time–Barred
lawsuit more than sixty days later. During this interim period,
Defendant next claims that Plaintiff's state claims of age
she did not pursue her claim with the OCRC and did not
discrimination are time barred because Section 4112.02(N) of
respond to its requests for interrogatories or interviews. The
the Ohio Revised Code provides that any civil action brought
OCRC therefore recommended dismissal of her charge due
under § 4112.02 must be instituted within 180 days after
to lack of cooperation with the discovery process. Defendants
the alleged unlawful discriminatory practice. Defendants also
equate this failure to cooperate with a failure to exhaust
contend that the continuing violations theory *1191 is not
administrative remedies, thereby mandating dismissal of the
applicable and thus cannot toll the limitations period. Plaintiff
claim.
argues that the Bellian decision relied upon by Defendants
[3] The Supreme Court has held that 29 U.S.C. § 633(b) was overruled by the Ohio Supreme Court in Cosgrove v.
mandates that in states where established agencies are Williamsburg of Cincinnati Management Co. Inc., 70 Ohio
empowered to remedy age discrimination in employment St.3d 281, 638 N.E.2d 991 (1994).
(deferral states), a person may not bring a suit in federal court
The Ohio Supreme Court has held that the time period
under the ADEA unless she has commenced a proceeding
of limitations of Section 4112.02(N) applies to age
with the appropriate state agency. Oscar Mayer and Co.
discrimination actions brought under § 4112.99. Bellian v.
v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609
Bicron Corp., 69 Ohio St.3d 517, 634 N.E.2d 608 (1994)
(1979) (emphasis added). The Ohio Civil Rights Commission
In Bellian, the Ohio Supreme Court held that an age
(OCRC) is Ohio's agency which is empowered to remedy age
discrimination claim premised on a violation of § 4112.99
discrimination in employment. Ohio is a deferral state within
had to comply with the 180–day limitations period despite the
the meaning of § 14(b) of the ADEA. Brownlow v. Edgcomb
employee's assertion that the claim should be governed by the
Metals Co., 573 F.Supp. 679, 683 (N.D.Ohio 1983).
general six-year limitations period. Plaintiff here makes the
[4] While it was the intent of Congress to encourage same argument in support of the six-year limitations period,
the resolution of age discrimination disputes on the state citing Cosgrove.
level through recourse to state administrative remedies, it is
The syllabus by the Court in Cosgrove states that “R.C.
equally clear that Congress intended to make the remedies
4112.99 is a remedial statute, and is thus subject to R.C.
of the ADEA complementary and supplementary to state
2305.07's six-year statute of limitations.” The syllabus in
administrative remedies, and not mutually exclusive. Oscar
Bellian reads: “Any age discrimination claim, premised on
Mayer, 441 U.S. at 764, 99 S.Ct. at 2075. Moreover,
a violation described in R.C. Chapter 4112, must comply
the holding in Oscar Mayer was that a filing of a state
with the one-hundred-eighty-day statute of limitations period
administrative complaint after the state statute of limitations
set forth in former R.C. 4112.02(N).” Justice Alice Robie
for that filing had run did not prevent an age discrimination
Resnick provides an important distinction in her concurring
plaintiff from proceeding with a claim under the ADEA,
opinion to Cosgrove to explain the apparent inconsistency
even though the filing had therefore been merely perfunctory.
between the holdings of the Ohio Supreme Court in Bellian
Id. The plaintiff need only wait sixty days before bringing
and Cosgrove.
suit in federal court, even if the filing is merely formal and
ineffective for state administrative purposes. Id. at 762, 99 The essential distinction between the two cases is that Bellian
S.Ct. at 2074–2075. was an age discrimination case while Cosgrove was a gender-
based discrimination claim. In Bellian the court recognized
This reasoning is applicable here. Ms. Dunn “commenced”
that there may be other provisions in R.C. Chapter 4112 that
state proceedings with the appropriate administrative agency,
permit aggrieved individuals to enforce specific rights under
the OCRC. The holding of Oscar Mayer does not require
Chapter 4112 by instituting a civil action. To the extent that
her to pursue that claim with the administrative agency to its
other specific provisions set forth a statute of limitations, a
conclusion. By waiting sixty days before filing her lawsuit
conflict could exist between such specific provisions and R.C.
in federal court, she has fulfilled the necessary jurisdictional
4112.99, relative to the applicable statute of limitations. “In
prerequisites and her second claim for retaliation is now
such an event, pursuant to R.C. 1.51, the specific provision's
properly before this Court.
statute of limitations must prevail.” Bellian, 69 Ohio St.3d at
519, 634 N.E.2d 608.



The plaintiff in Bellian brought an age-based employment An aggrieved individual may enforce
discrimination claim that purported to be based on R.C. his rights relative to discrimination of
4112.99. However, the only provision in R.C. Chapter 4112 the basis of age as provided for in this
that recognizes discrimination based on age is R.C. 4112.02. section by instituting a civil action,
Therefore, the plaintiff must have been referring to the within one hundred eighty days after
form of age-based discrimination identified in R.C. 4112.02. the alleged unlawful discriminatory
Cosgrove, 70 Ohio St.3d at 290, 638 N.E.2d 991. R.C. practice occurred, in any court with
4112.02(N) specifically authorized civil actions for age-based jurisdiction for any legal or equitable
employment discrimination claims and contained a 180–day relief that will effectuate his rights.
statute of limitations. Consequently, its statute of limitations
prevailed over that of R.C. 4112.99. When Plaintiff filed this action she was not in compliance
with the 180–day limitations period established by this
[5] [6] The plaintiff in Cosgrove brought a gender- section. For this reason, her claims for age discrimination
based employment discrimination claim, also pursuant to under Ohio Revised Code §§ 4211.02 and 4211.99 are time
R.C. 4112.99. As in Bellian, the only provision in R.C. barred and must be dismissed.
Chapter 4112 that proscribes gender-based employment
discrimination is R.C. 4112.02. Unlike the situation in Having determined that these claims are time barred, it is
Bellian, however, there is no R.C. Chapter 4112 provision, not necessary for the Court to address Defendants' argument
other than R.C. 4112.99, that creates civil liability for gender- that Plaintiff's age claims under Ohio law are barred by her
based employment discrimination claims. R.C. 4112.02(N) election of remedies.
only authorizes civil actions relative to discrimination on the
IV. Prima Facie Case of Age Discrimination
basis of age. Thus, there is no specific R.C. Chapter 4112
provision which conflicts with R.C. 4112.99. Accordingly, Although the Court has ruled that Plaintiff's age
the six-year statute of limitations set forth in R.C. 2305.07 discrimination claim is time-barred under 29 U.S.C. § 626(e),
and not the 180–day statute of limitations contained in an analysis of the evidence presented reveals that even if she
R.C. 4112.02(N) applies to gender discrimination claims. could proceed with her claim, she cannot establish a prima
Cosgrove, 70 Ohio St.3d at 291, 638 N.E.2d 991. This facie case.
analysis governs the situation before this Court. Because
this is an action alleging age discrimination, the 180–day Plaintiff has essentially alleged a claim of age discrimination
limitations period of R.C. 4112.02(N) is applicable to the state on the basis of a hostile work environment theory. Defendants
claims of Ms. Dunn. argue that the evidence presented is insufficient to support
such a claim and at most merely reflects hostility between co-
Even if the 180–day limitations period is applicable, Plaintiff workers rather than an age-hostile environment.
maintains that the statute of limitations is tolled under the
continuing violation theory because the statutory six-month Fed.R.Civ.P. 56(c) governs summary judgment and provides:
period begins to run anew with each new discriminatory act.
The judgment sought shall be rendered
The Court is not aware of any Ohio state courts having forthwith if the pleadings, depositions,
addressed the question of whether the continuing violations answers to interrogatories, and
rationale applies to age-based discrimination claims under admissions on file, together with the
R.C. 4112.99 or R.C. 4112.02. Since R.C. 2305 is not affidavits, if any, show that there is no
applicable here, any tolling *1192 provision within that genuine issue as to any material fact
section cannot be applied either so as to encompass Plaintiff's and that the moving party is entitled to
claims within the statutory period. judgment as a matter of law ...

Plaintiff's administrative claims were filed in June 1992 and The party moving for summary judgment bears the burden
April 1993. Plaintiff alleges that the discriminatory actions of showing the absence of a genuine issue as to any material
of the Defendants have been continual since June 1, 1991. fact, and for these purposes, the evidence submitted must be
She filed this cause of action on November 15, 1994. R.C. viewed in the light most favorable to the nonmoving party
4112.02(N) reads: to determine whether a genuine issue of material fact exists.



Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 class; (2) she was subject to unwelcome harassment; (3)
(6th Cir.1995). the harassment was prompted solely because of her age; (4)
the harassment affected a term, condition, or privilege of
“The burden on the nonmoving party may be discharged her employment; and (5) existence of respondeat superior
if the moving party demonstrates that the nonmoving party liability. Kotcher v. Rosa and Sullivan Appliance Center, Inc.,
has failed to establish an essential element of his or her 957 F.2d 59 (2d Cir.1992).
case for which he or she bears the ultimate burden of proof
at trial.” Morales v. American Honda Motor Co., Inc., 71 Defendants argue that Ms. Dunn has failed to present
F.3d 531, 535 (6th Cir.1995). If the moving party meets this sufficient facts to show that she was a victim of a hostile
burden, only then must the nonmoving party present more environment based on age. It is clear that plaintiff is within
than a scintilla of evidence in support of his or her position.
the protected class. Viewing the workplace incidents alleged
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. in a light most favorable to plaintiff, she was subjected
2505, 2512, 91 L.Ed.2d 202 (1986). Summary judgment must to unwelcome harassment. A reasonable inference may be
be granted unless there is sufficient evidence favoring the drawn by a jury, based upon Ms. Dunn's deposition and
nonmoving party for a judge or jury to return a verdict for that
affidavit, that the harassment was because of her age. There
party. Id. at 249, 106 S.Ct. at 2510–2511. is also sufficient evidence to establish a question of fact as
to whether the terms and conditions of her employment were
[7] [8] [9] A hostile work environment requires the affected.
existence of severe or pervasive and unwelcome verbal or
physical harassment because of a plaintiff's membership in Defendants make much of the fact that some of the other
a protected class. Meritor Sav. Bank, FSB v. Vinson, 477 employees were also over forty years of age. The fact
U.S. 57, 66–67, 106 S.Ct. 2399, 2405–2406, 91 L.Ed.2d 49 that some employees are over forty does not correspond
(1986). Title VII of the Civil Rights Act makes it illegal to an automatic lack of discrimination so as to preclude
for an employer to “discriminate against any individual with summary judgment. Defendant also emphasizes that isolated
respect to his compensation, terms, conditions, or privileges statements by a supervisor are insufficient to create an issue
of employment because of such individual's race, color, of material fact. Here, the record, when considered as a whole,
religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a) contains sufficient outstanding issues of material fact with
(1). The ADEA forbids the identical conduct when the respect to her claim that she was subjected to a hostile work
discrimination is “because of such individual's age.” 29 environment due to her age.
U.S.C. § 623(a)(1). With virtually little or no difference
between the ADEA and Title VII, there is no reason [11] [12] However, Plaintiff encounters difficulties in
to differentiate between age discrimination claimants and demonstrating the last requirement of a valid hostile
members of *1193 other protected groups for purposes work environment action, i.e. respondeat superior liability.
of bringing a hostile work environment claim; an age To show respondeat superior liability in co-worker
claimant's rights are simply protected by the ADEA rather discrimination cases, a plaintiff must prove that the employer,
than Title VII. Drez v. E.R. Squibb & Sons, Inc., 674 F.Supp. through its agents or supervisory personnel, knew or
1432, 1436–37 (D.Kan.1987). Several courts have recognized should have known of the charged harassment and failed
that a plaintiff may establish violations of the ADEA to implement prompt and appropriate corrective action.
by proving the existence of a hostile work environment. Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178,
See Clemmer v. Enron Corp. et al., No. Civ. A. H– 183 (6th Cir.1992), cert. denied, 506 U.S. 1041, 113 S.Ct.
93–3550, 1995 WL 334372 (S.D.Tex., March 27, 1995); 831, 121 L.Ed.2d 701.
Eggleston v. South Bend Community Sch. Corp., 858 F.Supp.
Here, Ms. Dunn admitted that she did not complain about
841, 847 (N.D.Ind.1994); Spence v. Maryland Cas. Co.,
the alleged incidents which serve as the basis for her action.
803 F.Supp. 649, 671 (W.D.N.Y.1992), aff'd. 995 F.2d
Additionally, when a fellow co-worker brought similar
1147 (2d Cir.1993). Accordingly, hostile work environment
concerns to the attention of the Hospital, the offending
allegations are equally cognizable in the age discrimination
supervisor was sent to “management sensitivity” training
context as well as in situations involving Title VII claimants.
seminars. Therefore, the Hospital, if it indeed had knowledge
[10] A hostile work environment theory requires that the of the incidents, did take prompt and appropriate corrective
plaintiff show that (1) she was a member of protected



action. Because a prima facie case for age discrimination so unpleasant that a reasonable person could not tolerate
cannot be established, summary judgment must be granted. it. Consequently, the facts do not constitute a materially
adverse change in the terms or conditions of employment and
V. Prima Facie Case of Retaliation summary judgment must be granted.
[13] The elements of a prima facie case of retaliation are VI. Intentional Infliction of Emotional Distress Claim
(1) that a plaintiff engaged in a protected activity; (2) that the
exercise of her protected rights was known to the defendants; [16] Negligent infliction of emotional distress is not
(3) that the defendants thereafter took an employment action recognized in the employment context in Ohio. See Antalis v.
adverse to plaintiff; and (4) that there was a causal connection Department of Commerce, 68 Ohio App.3d 650, 589 N.E.2d
between the protected activity and the adverse employment 429 (Ohio Ct.App. 10th Cir.1990).
action. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064,
1066 (6th Cir.) (per curiam), cert. denied, 498 U.S. 984, 111 [17] [18] To support a claim for the tort of intentional
S.Ct. 516, 112 L.Ed.2d 528 (1990). infliction of emotional distress under Ohio law, four elements
must be proved:
[14] Ms. Dunn claims that after she filed her first
discrimination complaint, the previous harassment she (1) that the actor either intended to cause emotional distress
suffered from other employees and supervisors intensified. or knew or should have known that actions taken would
She also claims that she was retaliated against *1194 result in serious emotional distress to the plaintiff;
through reprimands for her mistakes, a poor performance
(2) that the actor's conduct was extreme and outrageous,
review, a temporary reduction in the number of commercial
that it went beyond all possible bounds of decency
billers in the department, and being questioned about leaving
and that it can be considered as utterly intolerable in a
work early one day. Upon investigating her complaint, the
civilized community;
OCRC determined that it was probable that the Hospital
engaged in unlawful discrimination practices. Defendants (3) that the actor's actions were the proximate cause of the
argue that there is no evidence of any adverse employment plaintiff's psychic injury; and
action.
(4) that the mental anguish suffered by plaintiff is serious
[15] Determining whether there was a materially adverse and of a nature that no reasonable person could be
change in the terms or conditions of employment involves an expected to endure it.
objective determination of whether the conduct of Ms. Dunn's
supervisor and coworkers created such difficult or unpleasant Bellios v. Victor Balata Belting Co., 724 F.Supp. 514,
working conditions that a reasonable person in Ms. Dunn's 520 (S.D.Ohio 1989). See also Yeager v. Local Union
shoes could not tolerate them. Wilson v. Firestone Tire & No. 20, Teamsters, Chauffeurs Warehousemen, & Helpers
Rubber Co., 932 F.2d 510, 515 (6th Cir.1991). The facts of America, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983).
alleged in support of the retaliation claim are essentially the Liability does not extend to mere insults, indignities, threats,
same as those alleged in support of the age discrimination annoyances, petty oppressions, or other trivialities. Yeager, 6
claim. However, as with Plaintiff's age discrimination claim, Ohio St.3d at 375, 453 N.E.2d 666.
the following facts indicate that there is insufficient evidence
to establish a prima facie case for retaliation. [19] Ms. Dunn has complained of comments which were
directly related to her age, exclusion from office parties,
For instance, Ms. Dunn cannot recall if she was disciplined increase in work load, cursing by her supervisor, the
as a result of her mistakes. She cannot recall any of the dumping of her birthday cake into the trash, and other
“old” jokes made by co-workers. She did not report the insults or indignities. These incidents, she alleges, caused or
comments or whistling to a supervisor. The billers in the contributed to her stress and emotional distress. However, she
business office were seated by financial groups with older did not go to any medical provider other than her general
and younger billers on both sides of the room. The billers practitioner physician for her annual check-up. Further, she
were temporarily reduced for business reasons. She was not did not miss any work because of the stress or her working
demoted, threatened with dismissal, or forced to take a cut environment.
in pay. This evidence, when considered cumulatively, cannot
support a finding that Ms. Dunn's working environment was



Following the above standards, and even assuming that Ohio IT IS SO ORDERED.
recognizes the tort of intentional infliction of emotional
distress in the employment context, there is insufficient
evidence to show that the conduct Ms. Dunn complained ORDER
of was extreme and outrageous. *1195 The incidents
In accordance with the memorandum opinion this day filed,
complained of are not of the type to be considered as “utterly
the Defendants Motion for Summary Judgment (Dkt. # 38)
intolerable in a civilized society.” Again, these facts suggest
is GRANTED and the claims against the Defendants are
a likelihood of hostilities among co-workers rather than
dismissed with prejudice. This is a final and appealable order
intentional conduct by these defendants. Summary judgment
and there is no just cause for delay.
must be granted in favor of all the defendants on this issue.
IT IS SO ORDERED.
VI. CONCLUSION
Parallel Citations
For the reasons stated in this memorandum, Defendants'
motion for summary judgment is GRANTED. An 68 Empl. Prac. Dec. P 44,208
appropriate order will accompany this memorandum opinion.

Footnotes
1 Judge Paul R. Matia granted in part Defendants' motion to dismiss, dismissing Plaintiff's claims as to all defendants under § 1983
and the Ohio Rev.Code § 4101.17, and dismissing the age claims in Count I and II as to the individual defendants.

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.


Alsup v. International Union of Bricklayers and Allied..., 679 F.Supp. 716 (1987)
45 Fair Empl.Prac.Cas. (BNA) 287, 45 Empl. Prac. Dec. P 37,687

of conspiracy and invidiously discriminating
actions. 42 U.S.C.A. § 1985(3).


[3] Conspiracy
Pleading
Complaint which alleged that joint apprenticeship
committee and union engaged in practice of
racial discrimination in the bricklayer trade in
the Toledo area failed to state a cause of action
under § 1985(2); complaint did not sufficiently
allege necessary elements of conspiracy or any
Twenty-nine individuals who were bricklayers or wished to nexus with an ongoing federal court proceeding.
be bricklayers sued bricklayers union, its joint apprenticeship 42 U.S.C.A. § 1985(2).
committee, two contractor's associations, and six masonry or
general contractors. The suit alleged a pattern or practice of 2 Cases that cite this headnote
racial discrimination in the bricklayer trade in the Toledo
area. On defendants' motions for summary judgment or, in
[4] Federal Courts
the alternative, motions to dismiss, the District Court, John
Abatement and Revival
W. Potter, J., held that: (1) complaint failed to state a claim
under § 1985(3); (2) complaint failed to state a claim under Whether a § 1981 claim of a deceased plaintiff
§ 1985(2); (3) claims of deceased plaintiffs abated pursuant survives his death is governed by state law. 42
to Ohio statute; and (4) holding of the Sixth Circuit that Ohio U.S.C.A. § 1981.
statute of limitations for § 1981 actions is one year would be
retroactively applied.

Motions granted. [5] Abatement and Revival
Actions and Proceedings Which Abate
West Headnotes (13) Section 1981 claims of plaintiffs were personal
to plaintiffs, and therefore abated at their deaths,
pursuant to Ohio statute. 42 U.S.C.A. § 1981;
[1] Conspiracy Ohio R.C. § 2311.21.
Conspiracy to Interfere with Civil Rights
An action under § 1985(2) necessarily must 3 Cases that cite this headnote
involve the intimidation of witnesses, parties,
or court officers in an ongoing federal court [6] Federal Civil Procedure
proceeding. 42 U.S.C.A. § 1985(2). Failure to Appear or Testify; Sanctions
Federal Civil Procedure
Failure to Answer; Sanctions
[2] Conspiracy
A party's complaint may be dismissed for failing
Pleading
to appear for a properly noticed deposition
Complaint alleging that joint apprenticeship or for failing to respond to properly served
committee and union engaged in pattern or interrogatories; court may impose sanction
practice of racial discrimination in the bricklayer directly, without first issuing an order to compel
trade in the Toledo area failed to state a cause of discovery. Fed.Rules Civ.Proc.Rule 37(a), 28
action under § 1985(3); count failed to adequately U.S.C.A.
allege with particularity the necessary elements

EXHIBIT
"C"



Deferral to State Agencies; Time
[7] Civil Rights
In “deferral states” such as Ohio, where the
Disparate Treatment
EEOC defers to the state agency established to
A black employee suing his employer under investigate charges of discrimination, an EEOC
§ 1981 must prove not only that he was charge must be filed within 300 days after the
treated differently than white employees, but also alleged unlawful act. Civil Rights Act of 1964, §
that his different treatment was the result of 706(e), as amended, 42 U.S.C.A. § 2000e–5(f)(1).
discriminatory purpose. 42 U.S.C.A. § 1981.

[12] Civil Rights
[8] Civil Rights Deferral to State Agencies; Time
Prima Facie Case
When a charge of discrimination is submitted
Under Title VII, burden of proof is placed upon to both the Equal Employment Opportunity
job applicant to prove a prima facie case of racial Commission and state agency in a “deferral
discrimination by showing: that he belongs to a state,” the EEOC will not formally file its
racial minority; that he applied and was qualified charge of discrimination until after the state
for a job for which employer was seeking agency has terminated its proceedings or 60 days
applicants; that, despite his qualifications, he was have elapsed since filing of state administrative
rejected; and that after his rejection, position charge, whichever occurs earlier; therefore, state
remained open and employer continued to seek administrative charge of discrimination must
applicants from persons with his qualifications. generally be filed within 240 days of the alleged
Civil Rights Act of 1964, § 701 et seq., as unlawful practice in order to preserve claimant's
amended, 42 U.S.C.A. § 2000e et seq. right to file a Title VII lawsuit in federal court.
Civil Rights Act of 1964, § 706(e), as amended,
42 U.S.C.A. § 2000e–5(f)(1).
[9] Civil Rights
Presumptions, Inferences, and Burden of
Proof [13] Courts
In order to raise an inference of discrimination In General; Retroactive or Prospective
under Title VII, a job applicant must eliminate Operation
the two most common reasons why an applicant Holding of the Sixth Circuit that appropriate
for employment is rejected: either lack of Ohio statute of limitations for § 1981 actions
qualifications or lack of work. Civil Rights Act of is one year would be retroactively applied to
1964, § 701 et seq., as amended, 42 U.S.C.A. § employment discrimination claims; since the law
2000e et seq. on the subject had been erratic and inconsistent,
and without clear precedent on which plaintiffs
could reasonably rely, retroactive application of
[10] Civil Rights the holding was not unfair. Ohio R.C. § 2305.11;
Exhaustion of Administrative Remedies 42 U.S.C.A. § 1981.
Before Resort to Courts
Prior to filing a Title VII suit claimant must file
an administrative charge of discrimination with
the Equal Employment Opportunity Commission.
Civil Rights Act of 1964, § 701 et seq., as
amended, 42 U.S.C.A. § 2000e et seq. Attorneys and Law Firms

*718 Wilbur Jacobs, William J. Peters, Toledo, Ohio, for
plaintiffs.
[11] Civil Rights



claim alleges that defendants denied them the right to contract
Joseph W. Westmeyer, Jr., Joseph W. Westmeyer, Jr. Co., for employment, in violation of 42 U.S.C. § 1981.
Joseph J. Allotta, Allotta, Singer & Farley Co., Toledo, Ohio,
for defendants. JAC and Local 3, pursuant to Fed.R.Civ.P. 12(b)(6), move to
dismiss Counts I and II of the complaint for failure to state a
Opinion claim upon which relief can be granted. A motion to dismiss
for failure to state a claim should not be granted unless “it
OPINION AND ORDER appears beyond doubt that plaintiffs can prove no set of facts
in support of their claim which would entitle them to relief.”
JOHN W. POTTER, District Judge: Banks v. City of Forest Park, 599 F.Supp. 465, 468 (S.D.Ohio
1984). The factual allegations in the complaint are considered
This matter is before the Court on defendants Bricklayers as true and all reasonable inferences are construed in favor
Joint Apprenticeship Committee (JAC) and International of the non-moving party. Id. at 468. However, the court is
Union of Bricklayers and Allied Craftsmen of Toledo, Ohio, “required to accept only well pleaded facts as true ... not the
Local Union No. 3 (Local 3) motions for summary judgment legal conclusions that may be alleged or that may be drawn
or, in the alternative, motions to dismiss plaintiffs Lonnie from the pleaded facts.” Blackburn v. Fisk University, 443
R. Alsup (Alsup), Washington Brown Sr. (Brown Sr.), F.2d 121, 124 (6th Cir.1971). Furthermore,
Willie Brown, Jr. (Brown Jr.), Robert Cantrell (Cantrell),
Jeffrey E. Clint (Clint), Charles Foster (Foster), William [a] plaintiff pursuing a theory of conspiracy under the
Garcia (Garcia), Sylvester M. Gould Sr. (Gould), Charles civil rights act is “bound to do more than merely state
Harris (Harris), Lester Hollis (Hollis), Edward Holmes vague and conclusory allegations respecting that existence
(Holmes), John L. Hughes (Hughes), Richard Hunter of a conspiracy. It [is] incumbent upon him to allege
(Hunter), Marion Legare (Legare), Frederick Mars (Mars), with at least some degree of particularity overt acts which
Oneis McNeil (McNeil), Lloyd A. Meacham (Meacham), defendants engaged in which were reasonably related to the
Roy Meredith (Meredith), Thomas A. Mullins (Mullins), promotion of the claimed conspiracy.”
Robert Pack (Pack), James Proctor (Proctor), Lemoria
Robertson (Robertson), Angelo Robinson (Angelo), Will A. Taylor v. Flint Osteopathic Hospital, Inc., 561 F.Supp.
Robinson (Will), Robert Singletary (Singletary), Paul T. 1152, 1156 (E.D.Mich.1983) (citations omitted). The
Sledge (Sledge), Ezra Wallace (Wallace), Robert Walker complaint must also contain specific allegations regarding the
(Walker) and Isaac Watson (Watson), plaintiffs' opposition to involvement of each defendant. Oldland v. Kurtz, 528 F.Supp.
316, 322 (D.Colo.1981).
Local 3's motion and Local 3's reply. 1
Counts I and II of plaintiffs' complaint states as follows:
As originally filed, this was an action in which 29 men
who were bricklayers or wished to be bricklayers sued The defendant contractors Associations, the
Local 3, JAC, two contractors' associations, The Toledo Area Administrative Committee and Executive Director of
Hometown Plan, and six masonry or general contractors. the Toledo Area Hometown Plan have entered into a
Plaintiffs' suit alleges a pattern or practice of racial conspiracy for the purpose of depriving blacks of their
discrimination in the bricklayer trade in the Toledo area. civil rights and privileges as citizens of the United
States. Since 1977 the Contractors Association has
Plaintiffs' first claim alleges that the contractors associations
financed the Hometown Plan and paid the salaries of its
and The Hometown Plan entered into a conspiracy depriving
employees. Under the plan individual contractors submit
blacks of their civil rights and privileges. This claim is made
a monthly statistical profile of their workforce including
under *719 42 U.S.C. § 1985(3). Plaintiffs' second claim
those contractors who have government contracts to
for relief alleges that the contractors associations and The
the Executive Director of the Hometown Plan. The
Hometown Plan interfered with the access by blacks to federal
Administrative Committee's function is to monitor and
court, in violation of 42 U.S.C. § 1985(2). Plaintiffs' third
enforce the Department of Labor's guidelines but it
cause of action alleges a claim of racial discrimination in
has failed to do so. Despite the knowledge that all
employment against all defendants under Title VII of the 1964
mason contractors are discriminating in employment, the
Civil Rights Act, 42 U.S.C. § 2000e et seq. Plaintiffs' final
Administrative Committee and its Director has failed to
inform the OFCCP of the underutilization of blacks and


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