
    FOWLER v. HUDSON FOODS. 
    Court of Common Pleas of Ohio, Butler County.
    No. CV 98-03-0426.
    Decided Oct. 8, 1998.
    
      
      Freking & Betz, Randolph H. Freking and Michael B. McShea, for plaintiff.
    
      Thompson Hiñe & Flory L.L.P., Keith P. Spiller and Megan E. Clark, for defendant.
   Michael J. Sage, Judge.

This matter is before the court on a motion for summary judgment filed by defendant Hudson Foods (“defendant” or “Hudson”), requesting that this court find there are no genuine issues of material fact and the defendant is entitled to a judgment as a matter of law with respect to Count III of the complaint filed by plaintiff George Fowler (“plaintiff” or “Fowler”).

BACKGROUND

Plaintiff was formerly employed by Hudson. On September 4, 1995, Hudson terminated Fowler after nearly thirty years of service. Fowler alleges in his complaint that the reason for this termination was discriminatory and based on his age and race. Fowler is an African-American man and was born on February 25, 1943. Plaintiff filed a charge with the Equal Employment Opportunity Commission. Plaintiff subsequently filed an eight-count complaint. Upon motion to dismiss by defendant, on June 30, 1998, this court dismissed Count VI of the complaint and converted the motion regarding Count III into a motion for summary judgment pursuant to Civ.R. 12(B)(6). The parties were given time to respond, and the motion for summary judgment with respect to Count III of plaintiffs complaint is now ripe for judgment.

LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment shall only be granted when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. On a motion for summary judgment, the nonmovant is entitled to have any conflicting evidence construed in his favor. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384.

Summary judgment is a procedural device to terminate litigation and to avoid formal trial when there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615. Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution. Doubts must be resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825.

A court may be warranted in holding that a genuine issue of material fact exists where competing reasonable inferences may be drawn from undisputed underlying evidence or when facts presented are uncertain or indefinite. Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 60 O.O.2d 171, 286 N.E.2d 324.

For the purposes of this summary judgment motion, this court has carefully reviewed all of the evidence, including the pleadings and stipulations filed in this case. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138.

RELEVANT LAW

Count III of the complaint is based on age discrimination and is a civil judicial remedy filed pursuant to R.C. 4112.14 (formerly R.C. 4101.17). The Ohio Revised Code allows for three exclusive remedies for a person who has been discriminated against on the basis of age in the work environment. The employee may file a charge with the Ohio Civil Rights Commission (“OCRC”) under R.C. 4112.05. The employee may institute a civil action under R.C. 4112.14 or under R.C. 4112.02. However, these remedies are exclusive of one another. R.C. 4112.08 states: “Any person filing a charge under division (B)(1) of section 4112.05 of the Revised Code is, with respect to the unlawful discriminatory practices complained of, barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code.” In other words, once a person has pursued an administrative remedy with the Ohio Civil Rights Commission, that person cannot then pursue civil judicial remedies under those sections referenced.

This rule of exclusivity under the Revised Code is clear. However, confusion develops when state remedies are mixed with federal remedies. The federal Age Discrimination in Employment Act of 1967 (“ADEA”) requires that before a claim may be brought under it, the aggrieved party must resort to the state’s administrative remedies before bringing suit. ADEA, Section 621, Title 29, U.S.Code. Courts have consistently enforced this requirement. See Colina v. McGraw Constr. Co. (1990), 69 Ohio App.3d 422, 590 N.E.2d 1308 (Twelfth District Court of Appeals affirmed Butler County Court of Common Pleas’ dismissal based on lack of jurisdiction over the ADEA claims due to plaintiffs failure to file charge with the EEOC or the OCRC).

When a plaintiff seeks to pursue state remedies as well as federal remedies, a “catch 22” seems to arise. Ohio Administrative Code 4112-3-1(D) states in part that “a charge filed with the Equal Employment Opportunity Commission is deemed filed with the Ohio Civil Rights Commission.” Therefore, when a party files a charge with the federal administrative agency, the EEOC, which is necessary to satisfy the requirement of ADEA, the party has thereby filed with the state administrative agency, the OCRC, which, according to the Ohio Revised Code, prohibits the party from then choosing to pursue certain state civil remedies.

APPLICATION OF SUMMARY JUDGMENT STANDARD

In the present case, it is undisputed that the plaintiff filed a charge with the EEOC. It is also undisputed that Ohio has an age discrimination statutory system that provides for exclusive remedies. The parties disagree, however, whether the language of Ohio Adm.Code 4112-3-01(D) that “deems” a charge to be filed with the OCRC if it has been filed with EEOC means that the plaintiff has actually elected his/her remedy, barring him/her from further remedies under the Ohio Revised Code, namely a remedy under R.C. 4112.14 or Count III of the plaintiffs complaint.

In Schwartz v. Comcorp. (1993), 91 Ohio App.3d 639, 633 N.E.2d 551, a former employee who filed an age discrimination charge with the Equal Employment Opportunity Commission was precluded from pursuing a private age discrimination claim under the Ohio Revised Code due to the fact that by virtue of Ohio Adm.Code 4112-3-01(D) the charge was likewise filed with the OCRC and therefore the employee had elected one of the exclusive remedies available under the Ohio Revised Code.

However, the United States District Court for Southern District of Ohio in Pitts v. Dayton Power & Light Co. (S.D.Ohio 1989), 748 F.Supp. 527, held differently. The court held that the employee plaintiff who had previously filed an age discrimination charge with the OCRC for the purpose of meeting the requirements of the ADEA is not precluded from filing an age discrimination action under the Ohio Revised Code. The Pitts court came to this conclusion by expanding the holding in the Ohio Supreme Court case of Morris v. Kaiser Engineers, Inc. (1984) 14 Ohio St.3d 45, 14 OBR 440, 471 N.E.2d 471.

In Morris, the employee-plaintiff filed a civil action pursuant to then R.C. 4101.17, then filed a charge with the OCRC under R.C. 4112.05. The court held that “[a] claimant who has previously filed an age discrimination action under R.C. 4101.17 is not barred from filing a claim with the Ohio Civil Rights Commission pursuant to R.C. 4112.05 in order to satisfy the mandatory prerequisite to an action under the federal Age Discrimination in Employment Act.” Morris at paragraph of the syllabus.

Thus, the Pitts court reasoned that the Ohio Supreme Court “carved out an exception [to the general rule of exclusive remedies under the Ohio Revised Code] in situations in which the filing under section 4112.05 is merely intended to meet the requirements of the ADEA.” Pitts, 748 F.Supp. at 580. Thereby, the Pitts court reasoned that although the plaintiff in Morris filed the civil suit before the charge was filed and the current plaintiff did just the opposite, to distinguish on those grounds would be “absurd.” Id. at 581. Therefore, the court reasoned that if the case were before the Ohio Supreme Court, the court would hold in accordance with Morris and except the plaintiff from the general bar precluding plaintiffs from pursuing remedies under more than one section of the Ohio Revised Code. The Pitts court denied the defendant’s motion to dismiss.

The Pitts court and the Morris court relied on the fact that the plaintiffs in each case filed the charge with the OCRC pursuant to R.C. 4112.05 for the mere purpose of satisfying the prerequisite of filing a federal claim under the ADEA. Subsequent courts have attempted to clarify when a plaintiff has acted only to satisfy the requirements of the ADEA, thus falling under the exception to the general rule of preclusion. In Borowski v. State Chem. Mfg. Co. (1994), 97 Ohio App.3d 635, 647 N.E.2d 230, the court addressed cases like Schwartz v. Comcorp, where the plaintiff was barred from subsequently filing a civil action due to the charge filed with an administrative agency. Schwartz v. Comcorp, 91 Ohio App.3d 639, 633 N.E.2d 551. The court stated that in cases such as that, the “employee did not indicate to the OCRC that he/she did not want an investigation and was filing for ADEA purposes only. Thus, these employees elected the administrative remedy.” Borowski v. State Chem. Mfg. Co., 97 Ohio App.3d at 642, 647 N.E.2d at 235. Distinguishably, the employee in Borowski actually gave a signed letter , along with the charge to the OCRC, stating that he was filing only to perfect a claim under the ADEA. Id. at 643, 647 N.E.2d at 235.

The employer in Borowski contended that the employee should have filed first with federal and state court, then filed a charge with the OCRC. A federal court for the Southern District of Ohio subsequent to Pitts wrote a decision similar to the employer’s contention. In Baker v. Siemens Energy & Automation, Inc., the court interpreted Morris v. Kaiser as setting out a road map for plaintiffs who seek to pursue federal remedies under the ADEA as well as state civil remedies, but somehow avoid the “catch 22.” Baker v. Siemens Energy & Automation, Inc. (S.D.Ohio 1993), 838 F.Supp. 1227. Therefore, the Baker court held that it was required that plaintiffs wishing to accomplish this must file the civil suit under Ohio Revised Code first, then file a charge with the OCRC to perfect the ADEA claim. Id. at 1231. However, the Borowski court did not follow this holding in rejecting the employer’s contention. The court held that, instead, this procedure was available to the employee, but the employee’s method of specifying that he was filing a charge only to perfect a claim under the ADEA was enough to allow him to fall under the exception carved out by Morris and save him from being barred from pursuing a civil remedy under the Ohio Revised Code.

Therefore, Ohio case law does provide ,for limited exceptions that allow plaintiffs to get around the general rule that once a plaintiff files a charge with the OCRC pursuant to R.C. 4112.05 or once a plaintiff has instituted a civil action under R.C. 4112.14, the plainciff may not pursue the other. However, the plaintiff in the present case does not fall within these limited exceptions. The plaintiff first filed with the EEOC, which is deemed to be fifing with the OCRC, then the plaintiff sought a civil action under R.C. 4112.14. The plaintiff failed to state that the charge was filed for the sole purpose of perfecting an ADEA claim; therefore, the plaintiff has elected an administrative remedy under the Ohio Revised Code and is thereby barred from pursuing a remedy under R.C. 4112.14 in accordance with R.C. Chapter 4112. A 1997 case in which a plaintiff similarly filed a charge with the EEOC and was statutorily barred from pursuing a civil judicial remedy further supports this holding. See Williams v. Rayle Coal Co. (Sept. 19, 1997), Belmont App., No. 96-BA-42, unreported, 1997 WL 598091.

In sum, the court finds that the statutory language of the Ohio Revised Code along with case law interpreting it bars the plaintiff from pursuing a civil judicial remedy under R.C. 4112.14.

CONCLUSION

After careful consideration of the material submitted by the parties, the court finds that the defendant’s motion for summary judgment with respect to Count III of the plaintiffs complaint is well taken. The defendant’s motion is hereby GRANTED.

So ordered.

Judgment accordingly.  