2004 Ohio 4750 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} On February 5, 2003, Jones filed a complaint against various supervisors and the Board alleging that on or about August 11, 2000, he was discriminated against solely because of his age. He alleged that he worked for the Board for over 28 years, during which he complained to the Board about discriminatory practices, such as limiting his advancement and/or pay. He alleged that he was terminated on August 11, 2000 solely because of his age and in retaliation for his complaining to the Board about his alleged age discrimination. Jones alleges that such actions are violations of R.C. 4112 et seq.
{¶ 3} The Board filed a Civ.R. 12(B) motion to dismiss because the complaint was untimely and failed to state a claim upon which relief could be granted. The trial court granted the Board's motion.
{¶ 4} In his sole assignment of error, Jones claims that the trial court erred by granting the Board's motion to dismiss.
{¶ 5} In order to prevail on a Civ.R. 12(B)(6) motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover. A court is confined to the averments set forth in the complaint and cannot consider outside evidentiary materials. Greeley v. Miami ValleyMaintenance Contrs. Inc. (1990),
{¶ 6} When reviewing a judgment granting a Civ.R. 12(B)(6) motion, an appellate court must independently review the complaint to determine whether dismissal was appropriate. Decisions on Civ.R. 12(B)(6) motions are not findings of fact, but are rather conclusions of law. State ex. rel. Drake v.Athens Cty. Bd. of Elections (1988),
{¶ 7} An action for age discrimination regarding employment can be maintained under three different statutes within R.C. Chapter 4112. R.C.
{¶ 8} R.C.
{¶ 9} R.C.
{¶ 10} However, in the instant case, Jones failed to specify under which statutory provision in R.C. Chapter 4112 he based his claim. He included a jury demand and sought compensatory, punitive and/or exemplary damages. However, it has been held that a jury demand is unavailable under R.C.
{¶ 11} However, the instant case is analogous to Ferraro,
supra, because the plaintiff in Ferraro also did not specify a specific statutory provision and sought similar relief. Holding that a claim for relief was stated, the court concluded that R.C. Chapter 4112 is remedial in nature and should be construed liberally. See Giambrone v. Spalding Evenflo Co. (1992),
{¶ 12} Absent direct evidence of age discrimination, in order to establish a prima facie case of a violation of R.C.
"(1) was a member of the statutorily protected class, (2) wasdischarged, (3) was qualified for the position, and (4) wasreplaced by, or the discharge permitted the retention of, aperson of substantially younger age." Kohmescher v. Kroger Co.(1991),
{¶ 13} The Ohio Supreme Court recently held that:
"A plaintiff may plead a prima facie case of age-basedemployment discrimination in violation of R.C.
{¶ 14} Jones failed to plead a prima facie case of age discrimination because he failed to allege that he was replaced by a younger person. Even though his action for age discrimination is not barred as being untimely, his complaint fails to state a claim upon which relief can be granted. Therefore, the trial court did not err in granting the Board's motion to dismiss pursuant to Civ.R. 12(B)(6) as to his allegation of age discrimination.
{¶ 15} As to any claim for wrongful discharge/termination, Jones has based this claim on age discrimination and retaliation. Following the reasoning above, he cannot maintain an action for wrongful discharge/termination premised on age discrimination. Jones' retaliation claim under R.C.
{¶ 16} Although Jones mentions other causes of action in his complaint, to wit: breach of contract, negligence, and intentional infliction of emotional distress, he has not stated any claim for which relief can be granted under any of those causes of action.
{¶ 17} Accordingly, the trial court did not err in granting the Board's motion to dismiss.
Judgment affirmed.
It is ordered that appellees recover of appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Celebrezze, Jr., J. Concurs; Blackmon, P.J. Concurs in Partand Dissents in part (see separate Opinion).
Dissenting Opinion
{¶ 18} I respectfully dissent in part because I do not believe a 180 day statute of limitations applies to Jones's retaliation claim.
{¶ 19} The majority classifies Jones's retaliation claim as a claim brought pursuant to R.C.
{¶ 20} "[F]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections
{¶ 21} Although (N), which provides a remedy for plaintiffs who have been discriminated against based on age, expressly sets forth a 180 day statute of limitations, (I), which provides a remedy to employees who have been retaliated against for opposing discriminatory practices, does not. These are two different claims, requiring different evidence for setting forth a prima facie case. Notably, none of the other provisions in R.C.
{¶ 22} In fact, the Ohio Supreme Court held claims brought pursuant to Chapter 4112, under provisions which do not contain their own statute of limitations, have a six-year statute of limitations. Cosgrove v. Williamsburg of Cincinnati Mgmt. Co.,
{¶ 23} Thus, because I find Jones's statutory retaliation claim is subject to a six-year statute of limitations, I would reverse and remand the matter,