Dunn v. Bruzzese

{¶ 70} Although I agree with the majority that the trial court's judgment should be affirmed, I disagree with the manner in which the age-discrimination portion of the appeal was resolved. Thus, I concur in judgment only. Unlike the majority, I believe that the trial court was correct when it concluded that the statutorily prescribed election of remedies barred appellant from seeking any further relief in a civil action in state court because she had already filed an administrative action with the Equal Employment Opportunity Commission ("EEOC"). It is apparent, though, that even if the trial court was incorrect regarding the election of remedies, appellant has failed to produce evidence to support the elements of an age-discrimination claim, and summary judgment was properly granted to appellee. Additionally, I believe that the majority has not completely addressed some matters regarding appellant's claims of promissory estoppel and implied contract.

{¶ 71} The majority correctly concludes that appellant provided insufficient evidence to establish that Judge Bruzzese had made a clear and unambiguous promise of continuous or long-term employment, which is one of the elements of her claim of promissory estoppel. The record does not reasonably demonstrate any clear terms of an implied contract, including any actual offer or acceptance of long-term employment. It should also be pointed out, though, that the trial court and appellee were correct when they reasoned that both claims should also fail because Judge Bruzzese is legally prohibited from making any promise of continuous, permanent, or long-term employment to appellant. It is clear that appellant was a government employee, subject to the laws affecting government employees. As a matter of law, she must be treated as an "unclassified" employee under R.C. 124.11:

{¶ 72} "(A) The unclassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required by this chapter:

{¶ 73} "* * *

{¶ 74} "(8) Four clerical and administrative support employees for each of the elective state officers,and three clerical and administrative supportemployees for other elective officers and each of the principal appointive executive officers, boards, or commissions, except for civil service commissions, that are authorized to appoint such clerical and administrative support employees;

{¶ 75} "* * *

{¶ 76} "(10) Bailiffs, constables, official stenographers, and commissioners of courts of record, deputies of clerks of the courts of common pleas who supervise, or who handle public moneys or secured documents, and suchofficers and employees of courts of record and such deputies of clerks of the courts of common pleas as thedirector of administrative services finds it impracticable todetermine their fitness by competitive examination." (Emphasis added.)

{¶ 77} Whether under section R.C. 124.11(A)(8) or (A)(10), the parties appear to agree in principle that appellant was an unclassified public employee. Ohio Adm. Code123:1-47-01(A)(86) provides: "`Unclassified service' — Means all offices and positions which are exempt from all examinations and which provide no tenure under the law are unclassified. Appointment to a position in the unclassified service may be made at the discretion of the appointing authority and the incumbent may be removed, suspended or reduced from the position at the pleasure of the appointing authority." Thus, by law, unclassified employment is by definition employment without tenure and subject to the pleasure of the appointing authority. Smith v. Sushka (1995), 103 Ohio App. 3d 465, 470, 659 N.E.2d 875. "An unclassified employee is appointed at the discretion of the appointing authority and serves at the pleasure of such authority." State ex rel. Hunter v. Summit Cty. HumanResource Comm. (1998), 81 Ohio St. 3d 450, 453,692 N.E.2d 185.

{¶ 78} What appellant is essentially trying to prove is that Judge Bruzzese unilaterally converted or attempted to convert her position into something other than unclassified employment, giving her at least some of the rights of classified employees, such as the right to have a definite term of employment. Krickler v. Brooklyn,149 Ohio App. 3d 97, 2002-Ohio-4278, 776 N.E.2d 119, from the Eighth District Court of Appeals, involved a similar claim made by a personnel/records clerk working for the city of Brooklyn, a suburb of Cleveland. The employee alleged that the former Mayor, John Coyne, induced her to take the job by promises and assurances that it was a permanent classified position and that she would not be subject to the rules of unclassified employment. When the mayoral administration changed, she was fired. She brought claims of wrongful discharge and promissory estoppel against the former mayor and the city of Brooklyn.

{¶ 79} The Eighth District Court of Appeals held: "In order to maintain a claim for promissory estoppel against a municipality, however, [the plaintiff] must show that Mayor Coyne's representations were within his power. If he had no authority to determine whether a position is in the classified civil service or to create such a position, then she cannot establish the element of justifiable reliance." Id. at ¶ 8. The Eighth District further held: "[H]er status as a classified or unclassified employee is governed by R.C. 124.11, and not by the `appointing authority,' in this case the mayor. * * * The mayor has no authority to render an unclassified position classified, or vice versa, in violation of R.C. 124.11." Id. at ¶ 9.

{¶ 80} Thus, it would be impossible for appellant to enforce any promise of permanent or long-term employment that Judge Bruzzese allegedly had made to her because he had no authority to convert an unclassified position into a position that had additional rights, including the possibility of long-term employment, only afforded to classified employees. As the majority points out, reasonable reliance is an essential element of appellant's claim of promissory estoppel. If appellant cannot prove reasonable reliance, she cannot establish promissory estoppel.

{¶ 81} With respect to appellant's claim of implied contract, the parties could not enter into an enforceable contract that was in direct violation of state statutes and administrative law. Illegal promises cannot be contractually enforced. A contract containing such promises will either have them stricken from the contract, if that is possible, or the promises will render the entire contract void.Extine v. Williamson Midwest, Inc. (1964),176 Ohio St. 403, 405, 27 O.O.2d 375, 200 N.E.2d 297. Illegal contracts are void ab initio and legally unenforceable. "Courts of law and courts of equity will decline to enforce obligations created by contract if the contract is illegal or the consideration given for it is illegal, immoral, or against public policy." hanger v. Langer (1997),123 Ohio App. 3d 348, 354, 704 N.E.2d 275. Appellant is attempting to use both the court of law (in her contract claim) and the court of equity (in her promissory-estoppel claim) to enforce an illegal provision of a government contract, namely, a provision that converts statutorily dictated at-will employment to long-term permanent employment. Neither the court of common pleas nor this court has the authority to enforce any such a provision.

{¶ 82} Turning now to the age-discrimination claim, the trial court correctly noted that there is a procedural minefield awaiting an employee who attempts to prosecute such a claim in Ohio. Appellee argued that one aspect of this procedural minefield, namely the election of remedies, bars appellant from pursuing her claim in state court. The trial court accepted appellee's argument and relied on it as one of two reasons for granting summary judgment to appellee. The majority opinion does not rely on the election of remedies as a basis for affirming the trial court judgment. It is my opinion, though, that the trial court was correct in its analysis concerning appellant's election of remedies.

{¶ 83} This matter appears to be one of first impression, because neither I nor the majority can find cases on point with the current factual situation. The trial court was fully aware, however, that in Ohio, there are four options under state law to pursue an age-discrimination claim, aside from the possibility of pursuing federal claims. A plaintiff may pursue a judicial remedy under three different code sections: R.C. 4112.02, 4112.14, or 4112.99. In the instant case, appellant filed a claim in the Jefferson County Court of Common Pleas pursuant to R.C. 4112.14. An age-discrimination plaintiff is also permitted to pursue an administrative remedy by filing a charge with the Ohio Civil Rights Commission ("OCRC") under R.C. 4112.05. There are further provisions requiring the plaintiff to elect one among the various remedies provided in these code sections. R.C.4112.08 states: "[A]ny person filing a charge under division (B)(1) of section 4112.05 of the Revised Code, with respect to the unlawful discriminatory practices complained of, is barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code."

{¶ 84} To further complicate matters, there are also federal remedies available, such as administrative relief through the EEOC and judicial relief under the federal Age Discrimination in Employment Act ("ADEA") of 1967. When pursuing federal relief, though, a plaintiff is required to exhaust administrative remedies prior to seeking judicial relief. Section 621, Title 29, U.S.Code. Under Ohio law, seeking relief from the EEOC is treated as seeking administrative relief from the OCRC. See Ohio Adm. Code4112-3-01(D)(3). Thus, there is a conflict between Ohio and federal procedure in seeking relief for allegations of age discrimination. The majority misses this important fact. Since an EEOC filing is, for all legal purposes, considered to be an OCRC filing under the rules, the majority's arguments that the filing might not have occurred with the Ohio commission are irrelevant. The trial court recognized that the case now under review involves appellant's attempt to pursue a judicial remedy under R.C. 4112.14, even though she had already filed an administrative claim with the OCRC and EEOC. Thus, she would appear to be barred from receiving any judicial relief under R.C. 4112.14. This is the basic conflict that the trial court attempted to resolve.

{¶ 85} A few facts and legal principles were crucial in the trial court's analysis. The court noted that appellant had filed an administrative charge with the EEOC prior to filing her federal complaint under the ADEA. The court recognized that an EEOC filing is a prerequisite to filing a civil suit under the ADEA, as part of the federal requirement that a claimant first exhaust the administrative remedies. The court also noted that Ohio has no such procedural requirement to exhaust administrative remedies. In Ohio, we require the plaintiff to elect at the outset whether to pursue administrative or judicial remedies. The court observed that appellant had not filed any notice with the federal court or the EEOC that the administrative charge was being filed for the sole purpose of protecting her federal ADEA claim. The court cited case law holding that in Ohio, an age-discrimination plaintiff who desires to pursue both state and federal judicial remedies must either file the state court action first or expressly acknowledge to the EEOC that no investigation is required because the administrative charge is being filed solely to protect the claimant's federal rights. The court was aware that appellant's federal claims were dismissed with prejudice but that her state civil claims attached to the federal lawsuit were dismissed without prejudice. Based on this situation, the court did not find any legal basis for concluding that appellant's state claims filed in Jefferson County in 2005 were preserved by "relating back" to the earlier filing in federal court.

{¶ 86} I believe that the trial court was correct in its analysis and in the law that was cited. My conclusion is based on two further points of disagreement with the majority opinion. The first concerns the date that initiated appellant's administrative remedy in this matter. The parties agree that appellant first initiated a claim in March 2002 with the OCRC and the EEOC without designating that the administrative filing was solely for the purpose of preserving her federal rights. The record contains a copy of the "Charge of Discrimination" filed with the OCRC, signed and dated on March 10, 2002, in the presence of an OCRC representative, which the majority apparently believes to be unimportant. The form also states that the charge should also be filed with the EEOC, and it appears that it was received and filed by the EEOC on October 10, 2002, according to a timestamp on the form. I will refer to this as the OCRC/EEOC charge. Appellant subsequently filed a complaint in federal court in late 2002, which included an Ohio state law claim under R.C. 4112.14. The federal claims were dismissed with prejudice, and the federal court declined to retain jurisdiction over the state claims, which were dismissed without prejudice.

{¶ 87} Appellant did not promptly refile her state claims in Jefferson County, but instead waited 15 months after they had been dismissed by the federal court. Importantly, while her federal claims were dismissed, the OCRC/EEOC charge was never withdrawn or amended. Ohio law clearly requires an election of remedies in age-discrimination cases, and when appellant filed her state claim in 2005, she had already pursued an administrative remedy with the OCRC and the EEOC. Appellant could have filed to withdraw her OCRC/EEOC charge, could have more timely refiled her claims in state court, or could have clarified that she had filed the OCRC/EEOC charge solely to preserve her federal rights. She did none of these things. Therefore, she was barred under the statutory election of remedies from pursuing judicial relief under R.C.4112.14.

{¶ 88} Some of the procedural events of this case require a closer inspection. Section 1367, Title 28, U.S. Code provided the basis for appellant to file state claims along with her federal claims for age discrimination. This statute establishes the authority of the federal courts to exert supplemental jurisdiction over state law claims and states:

{¶ 89} "(a) * * * [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

{¶ 90} "* * *

{¶ 91} "(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period."

{¶ 92} The statute clearly provides a tolling period of 30 days in those situations in which the state law claims are dismissed by a federal court to allow the plaintiff to refile his or her claims in state court. See Section 1367(d), Title 28, U.S.Code. Appellant's state law claims were dismissed without prejudice from the federal lawsuit on February 2, 2004. However, appellant did not refile her state claim within 30 days. She waited 15 months, May 2005, before filing her complaint in Jefferson County. Appellant has pointed to no rule, statute, or case law that would directly or indirectly extend the 30-day tolling period found in Section 1367(d), Title 28, U.S. Code, and allow her to wait 15 months to refile her state claim. There is some discussion in the record that the doctrine of "relation back" might apply to preserve her claim in state court. The doctrine of "relation back" refers to the application of certain court rules or statutes that specifically allow filings or amended filings to be treated as if they were filed at an earlier time. The term is used in conjunction with Civ.R. 15, which sets forth circumstances in which amended claims may be treated as if they had been filed on the original date of the complaint. Civ.R. 15 also allows the doctrine to apply to newly discovered defendants under certain circumstances. Obviously, none of these occurred in the instant case. Appellant did not amend a complaint or add a party to a complaint. Her federal case was dismissed rather than amended. She filed a totally new complaint in state court 15 months later. Civ.R. 15 has no application to this situation.

{¶ 93} "Relation back" is sometimes discussed in the context of R.C. 2305.19, usually referred to as the "saving statute." Under certain conditions, this application allows claims to be refiled within one year after being dismissed "otherwise than upon the merits," meaning without prejudice. The saving statute as it existed when appellant's federal case was dismissed read as follows:

{¶ 94} "In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date." G.C. 11233.

{¶ 95} The Ohio Supreme Court has held that R.C.2305.19 applies to preserve state age-discrimination suits under R.C. 4112.02(N) that have been dismissed without prejudice as part of federal discrimination actions, and when the 180-day statute of limitations in R.C. 4112.02(N) has expired. Osborne v. AK Steel/Armco Steel Co. (2002),96 Ohio St. 3d 368, 2002-Ohio-4846, 775 N.E.2d 483. InOsborne, the 180-day statute of limitations had expired on the state claims during the pendency of the federal lawsuit. When the state claims were dismissed without prejudice, the plaintiff would have been without recourse in state court except for the application of the saving statute. It is in this context that Osborne applied former R.C.2305.19 to allow the plaintiff one year to refile his state age-discrimination claim.

{¶ 96} These legal precedents do not help appellant. She filed her state claim pursuant to R.C. 4112.14, not R.C. 4112.02(N). R.C. 4112.14 does not specifically include a limitations period, but has consistently been held to be subject to the six-year statute of limitations found in R.C.2305.07, dealing with contracts not in writing. See, e.g.,Ferraro v. B.F. Goodrich Co., 149 Ohio App. 3d 301,2002-Ohio-4398, 777 N.E.2d 282, ¶ 32; Ahern v. AmeritechCorp. (2000), 137 Ohio App. 3d 754, 780, 739 N.E.2d 1184. The six-year statute of limitations had not yet expired when she attempted to file her state court claims in Jefferson County in 2005, because her claims arose out of incidents occurring in 2002. The saving statute as formally written did not apply to situations in which claims were dismissed without prejudice but the statute of limitations had not yet expired on those claims (in contrast to the current saving statute).Reese v. Ohio State University Hospitals (1983),6 Ohio St. 3d 162, 6 OBR 221, 451 N.E.2d 1196. In other words, under the old savings statute, if a claim was dismissed without prejudice, and if the statute of limitations had not yet run out, the plaintiff was left to rely on the normal rules of civil procedure and the original statute of limitations. He or she could simply file a claim in state court as a new action within the applicable statute of limitations. There was no need for the claims to "relate back" if the original statute of limitations had not yet expired.

{¶ 97} Thus, in appellant's case, her filing in May 2005 was a new filing because the original statute of limitations had not yet expired. Here is the second area about which I disagree with the majority opinion. The usual rules of procedure dictate that a prior "dismissal without prejudice leaves the parties as if no action had been brought at all." DeVille Photography, Inc. v.Bowers (1959), 169 Ohio St. 267, 272, 8 O.O.2d 281,159 N.E.2d 443. The majority contends that this rule applies only if the issue at hand is the res judicata effect of a judgment, even though it is a general rule of law cited in many contexts. There is no logical reason, however, to ignore the holding inDeVille Photography, Inc. simply because the matter at hand does not involve questions of res judicata. When the federal court dismissed appellant's state law claims, appellant was left in the position, legally speaking, as if she had never filed those claims in the first place. If her May 2005 filing effectively nullifies the prior filing in federal court, then the only prior action that remained pending was her OCRC/EEOC charge from 2002. Again, the record does not indicate that appellant had withdrawn the OCRC/EEOC charge or amended it in any way prior to filing her state claim in 2005. While the majority appears to oversimplify an admittedly complex and confusing procedure, there is no reason from this record to absolve appellant from the effects of her own choices and actions.

{¶ 98} Under Ohio law, the prior filings of an administrative claim bars a plaintiff from pursuing a remedy under R.C. 4112.14, according to the plain language of R.C.4112.14(B), which states:

{¶ 99} "The remedies available under this section are coexistent with remedies available pursuant to sections4112.01 to 4112.11 of the Revised Code; except that any person instituting a civil action under this section is, with respect to the practices complained of, thereby barred from instituting a civil action under division (N) of section 4112.02 of the Revised Code or from filing a charge with the Ohio civil rights commission under section 4112.05 of the Revised Code."

{¶ 100} R.C. 4112.05 contains the provisions for seeking administrative relief. Filing a claim with the EEOC counts as seeking an administrative remedy for purposes of R.C.4112.05(B)(1). See Ohio Adm. Code 4112-3-01(D)(3). Thus, unless some other type of exception applies, appellant filed and pursued her administrative remedy long before she filed and pursued her judicial remedy under R.C. 4112.14 in state court. The law in Ohio is clear that once a plaintiff elects to pursue an administrative remedy for age discrimination, he or she is precluded from pursuing a judicial remedy in state court under R.C. 4112.14. Balent v. Natl. Revenue Corp. (1994),93 Ohio App. 3d 419, 424, 638 N.E.2d 1064; Williams v. RayleCoal Co. (Sept. 19, 1997), 7th Dist. No. 96-BA-42,1997 WL 598091.

{¶ 101} As noted by appellee and the trial court, the only exception that might have applied is that appellant could have informed the OCRC and EEOC that she was filing the administrative claim solely for the purpose of preserving her federal rights. This is a recognized exception to the election-of-remedy rules in age-discrimination cases in Ohio. For example, Pitts v. Dayton Power Light Co. (S.D.Ohio 1989), 748 F. Supp. 527, held that the Ohio Supreme Court in Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St. 3d 45, 14 OBR 440, 471 N.E.2d 471, carved out an exception to the election-of-remedies requirement in age-discrimination cases when the plaintiff clearly indicates that he or she is filing an EEOC charge only to satisfy the federal requirements of the ADEA and to preserve federal rights. Other courts have come to the same conclusion. See, e.g., Borowski v. State Chem. Mfg. Co. (1994),97 Ohio App. 3d 635, 647 N.E.2d 230; Talbott v. Anthem Blue Cross Blue Shield (S.D.Ohio, 2001), 147 F. Supp. 2d 860;McNeely v. Ross Correctional Inst, 10th Dist. No. 06AP-280,2006-Ohio-5414, 2006 WL 2949014.

{¶ 102} It is clear from the record that appellant did not make such a designation when she filed her OCRC/EEOC charge. She did not express this in her original OCRC/EEOC filing, and there is no indication that she amended or withdrew her administrative charge of discrimination at any time in this litigation. Thus, the trial court was left to follow the strict statutory requirements dealing with the election of remedies in age-discrimination cases, and it subsequently granted summary judgment to appellee.

{¶ 103} This is obviously a harsh outcome for what appears to be a seemingly trivial procedural omission. Yet, this is the way Ohio's age-discrimination statutes are written and how they have been strictly applied for many years. While it is possible that the outcome would be different if appellant had refiled her state claims within 30 days of their dismissal from federal court, or if she had attempted to withdraw her OCRC/EEOC charge, or if she had at least clarified her position to the EEOC at some point, she did none of these things. Thus, I see no reason why the established law regarding the election of remedies, strict as it is, should not be applied. For all the aforementioned reasons, I agree with the trial court's decision that appellant was barred from pursuing her state-law action under R.C. 4112.14 due to her prior election of an administrative remedy.

{¶ 104} Again, the trial court relied on this issue in its decision, and we are not free to give short shrift to his decision on appeal. While I feel it is imperative to address the election-of-remedies issue, I do agree with the majority that there is an additional basis for affirming the trial court judgment, in that appellant did not actually provide evidence to support her age-discrimination claim under R.C. 4112.14. I believe, however, that this reasoning must be more fully addressed in order to be understandable.

{¶ 105} Appellant was initially required to establish a prima facie case for age discrimination under R.C.4112.14, as set forth in the following four-part test:

{¶ 106} "1. Absent direct evidence of age discrimination, in order to establish a prima facie case of a violation of R.C. 4112.14(A) in an employment discharge action, a plaintiff-employee must demonstrate that he or she (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age." Coryell v. Bank One Trust Co. N.A.,101 Ohio St. 3d 175, 2004-Ohio-723, 803 N.E.2d 781, paragraph one of the syllabus.

{¶ 107} Once the plaintiff provides some evidence of these elements, the burden shifts to the defendant to set forth a legitimate, nondiscriminatory reason for the plaintiffs discharge. Mauzy v. Kelly Servs., Inc. (1996),75 Ohio St. 3d 578, 582, 664 N.E.2d 1272; McDonnell Douglas Corp. v.Green (1973), 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668. The burden then shifts back to the plaintiff to show that the rationale given by the defendant was only a pretext for unlawful discrimination. Mauzy, 75 Ohio St.3d at 582,664 N.E.2d 1272. The plaintiff may establish pretext by showing that "(1) there was no basis in fact for the justification given, (2) the justification did not actually motivate the discharge, or (3) the justification was insufficient to motivate the discharge." Basinger v. Pilarczyk (2000),137 Ohio App. 3d 325, 328-329, 738 N.E.2d 814. The plaintiff is required to affirmatively show, even in summary judgment proceedings, that there is a material evidentiary dispute concerning whether the employer's stated justification for the firing was merely a pretext. Conway v. Paisley House, 7th Dist. No. 02CA135, 2003-Ohio-4609, 2003 WL 22038192, ¶ 24. I agree with the majority that appellant has failed to establish any genuine issue of material fact in dispute concerning whether Judge Bruzzese's stated reasons for firing her are pretextual. Appellant was required to set forth facts directly related to the defendant's stated justification for the firing, and she did not. "The plaintiff's burden is to prove that the employer's reason was false and that discrimination was the real reason for the discharge." Id. Without some type of evidentiary dispute about the specific reasons proffered as the basis for firing appellant, it is appropriate to grant summary judgment to appellee. Appellant offered no evidence to dispute the evidence offered by appellee. Despite her apparent belief to the contrary, her mere opinion of his evidence and its credibility is not adequate to meet her burden. Therefore, while I concur with the majority that the judgment of the trial court should be affirmed, I partially disagree as to the reason for which we must affirm.