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Huff v. Ceremicos6/3/2002
JUDGMENT: Affirmed
Plaintiff Kenneth Huff appeals a summary judgment of the Court of Common Pleas of Stark County, Ohio, entered in favor of Ceremicos, Inc. on appellant's complaint alleging, inter alia, age discrimination. Appellant assigns two errors to the trial court:
ASSIGNMENTS OF ERROR
I. SINCE DEFENDANTS-APPELLEES FAILED TO SUSTAIN THEIR INITIAL BURDEN UNDER CIVIL RULE 56, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.
II. SUMMARY JUDGMENT WAS ERRONEOUSLY GRANTED AS PLAINTIFF-APPELLANT RIGHTFULLY COULD PROSECUTE A CLAIM FOR ALLEGED AGE DISCRIMINATION IN EMPLOYMENT.
Appellant states the underlying facts and circumstances are not in dispute, but the appeal challenges the trial court's decision as a matter of law.
The record indicates on December 30, 1998, Ceremico terminated appellant's employment. Appellant was 51 years old. On April 7, 1999, appellant filed a charge affidavit with the Ohio Civil Rights Commission, alleging age discrimination. OCRC entered a no probable cause finding on December 16, 1999. In response to appellant's motion, OCRC reconsidered its finding, but again on February 17, 2000, it found no probable cause to support appellant's claim.
On June 27, 2000, appellant filed a complaint in U.S. District Court. On August 1, 2000, appellant dismissed this without prejudice, and on March 21, 2001, appellant filed this action in Stark County Common Pleas Court.
I & II
Because appellant concedes there are no issues of disputed fact, we will address assignments of error I and II together for purposes of clarity. The trial court found appellant could not prevail on his claim for age discrimination for two reasons, either of which taken alone would be sufficient to bar appellant's action. The court found first of all the election of remedies doctrine applies to appellant's case, and secondly, appellant did not file his complaint timely as provided under the applicable statute of limitation. We will address each of these in turn.
ELECTION OF REMEDIES
R.C. 4112.02(N) provides any person who is discriminated against may bring a cause of action pursuant to this section, but that person is barred from bringing an action pursuant to R.C. 4112.14, or filing a complaint with the Ohio Civil Rights Commission under R.C. 4112.05. The trial court correctly cited Talbott v. Anthem Blue Cross and Blue Shield (2001), 147 F. Supp. 2d 860, wherein the United States District Court for the Southern District of Ohio, Eastern Division, found although R.C. 4112.99 is not expressly exclusive, the other statutes which provide protection against age discrimination preclude recourse to any of the others.
Appellant argues under the Age Discrimination and Employment Act of 1967, 29 U.S. C. 621, an applicant must first file a charge with either the State Civil Rights Commission or Equal Employment Opportunity Commission. Appellant argues when he filed his Ohio Civil Rights Commission complaint, he did so only for the purpose of preserving his federal remedies. Appellant cites Baker v. Seimans Energy and Automation, Inc. (S.D. Ohio, 1993), 838 F. Supp. 1227. In Baker, the court held an age discrimination claimant who has previously filed a charge with the Ohio Civil Rights Commission for the sole purpose of fulfilling the requirement of the Federal Age Discrimination Act, is not precluded from filing an age discrimination action under state statutes.
The trial court distinguished between Baker and the instant case, finding there was no evidence that appellant filed with OCRC solely to preserve the federal cause of action. T
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