577 N.E.2d 1180 | Ohio Ct. App. | 1989
Plaintiff, Patricia Harris, both individually and as executor of the estate of Ralph Harris, appeals a judgment of the Ohio Court of Claims dismissing her complaint against defendants, Ohio Department of Administrative Services et al., and raises this sole assignment of error: *116
"The Court of Claims erred in refusing to take jurisdiction of the questions of age discrimination of a state employee under Ohio Revised Code
Plaintiff filed a complaint in the Court of Claims and, following several amendments, it alleged that "* * * defendants abolished Ralph Harris' job without just cause and hired younger employees in his place discriminating against him on the basis of his age, in violation of Ohio Revised Code
The Court of Claims entered an order of dismissal pursuant to Civ.R. 12(B)(1), for lack of subject-matter jurisdiction. It is from this decision that plaintiff timely appeals.
Plaintiff filed the complaint pursuant to R.C.
"(A) No employer shall discriminate in any job opening against any applicant or discharge without just cause any employee between the ages of forty and seventy who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee.
"(B) Any person between the ages of forty and seventy discriminated against in any job opening or discharged without just cause by an employer in violation of division (A) of this section may institute a civil action against the employer in acourt of competent jurisdiction. * * *" (Emphasis added.) See 138 Ohio Laws, Part I, 2268.
Prior to its amendment in 1979 by the addition of R.C.
It must first be determined whether defendants, state agencies, are "employers" within the meaning of R.C.
In R.C. Chapter 4112, which establishes the Civil Rights Commission, both "person" and "employer" are defined more broadly, expressly to include the state and all political subdivisions. R.C.
R.C. Chapter 4112 sets forth unlawful discriminatory practices. Specifically, R.C.
The definitions in R.C.
The important change became effective November 13, 1979, by the enactment of Am.H.B. No. 230 (138 Ohio Laws, Part I, 2268), which amended both R.C.
By this same Act, R.C.
"An aggrieved individual may enforce his rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one hundred eighty days after the alleged unlawful practice occurred, in any court of competent jurisdiction for any legal or equitable relief that will effectuate his rights. A person who files a civil action under this division is, with respect to the practices complained of, thereby barred from instituting a civil action under section
This remedy of a civil action does apply to the state as an employer, thus evincing no legislative intent that the state not be subject to suit by a civil action for age discrimination.
Since both statutes were amended at the same time by the same Act and both were amended to prohibit age discrimination and to provide a remedy (one a civil action in court and the other an administrative remedy),1 and in light of the express cross-reference in each to the other statute, the two statutes should be read in pari materia. The obvious intent of the legislature in enacting Am.H.B. No. 230 in 1979 was to prohibit age discrimination by employers including the state. Since R.C.
Furthermore, R.C. Chapter 4101, which contains R.C.
Having determined that the state is an employer for purposes of R.C.
However, defendants contend that R.C.
The basis of the holding in Berke was that an alternative remedy was available to plaintiff which existed prior to the enactment of R.C.
"The state personnel board of review shall exercise the following powers and perform the following duties of the department of administrative services:
"(A) Hear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities or the director of administrative services relative to reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification * * * [:] the board may affirm, disaffirm, or modify the decisions of the appointing authorities or the director of administrative services, as the case may be, and its decision is final[.]"
In conclusion, we held: "* * * [t]here are other remedies available to appellant, provided by law, and the Court of Claims Act is not applicable." Id.,
However, Berke was decided three years prior to the 1979 amendment to R.C.
By prohibiting and establishing a private cause of action for age discrimination, the legislature created a right not previously available. R.C.
R.C.
Defendants further contend that plaintiff is collaterally estopped from litigating the age-discrimination claim as plaintiff appealed the job abolishment to the State Personnel Board of Review. Plaintiff contends that the decedent did not have an opportunity to litigate that issue fully before the State Personnel Board of Review and, therefore, collateral estoppel does not apply. Assuming collateral estoppel could apply, these are issues of fact which are not yet properly before this court as the case was dismissed at the trial level for lack of subject-matter jurisdiction. Whether collateral estoppel applies is for the trial court to decide in the first instance after further evidence from both parties has been adduced. At this time, it is premature to determine the applicability of collateral estoppel.
Therefore, the only issue before us and determined is that the Court of Claims has subject-matter jurisdiction over plaintiff's age-discrimination claims. Defendants, state agencies, are "employers" for purposes of R.C.
For the foregoing reasons, plaintiff's assignment of error is sustained and the judgment of the Court of Claims is reversed and this cause is remanded for further proceedings in accordance with law consistent with this opinion.
Judgment reversedand cause remanded.
McCORMAC, P.J., and STRAUSBAUGH, J., concur.