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Filing Age Discrimination Complaint within 90-day Rule

Loria Moore v. Department of Rehabilitation and Corrections (Franklin App. March 31, 2011), 2011-Ohio-1607: Moore worked as a correctional officer for Ohio Department Corrections. On January 9, 2007, she was discharged. On January 11, 2007, she filed a discrimination charge based on the Age Discrimination in Employment Act ("ADEA") with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission ("EEOC"). On November 12, 2008, the EEOC mailed her a right to sue letter informing her that, under the ADEA, she must file a lawsuit either in state or federal court within 90 days of receiving the notice. On February 10, 2009, Moore filed suit based on the ADEA and a Title VII claim alleging race discrimination in the federal district court. On May 26, 2009, Moore voluntarily dismissed her federal suit because the court did not have jurisdiction over her claim. On May 28, 2009, she re-filed the same complaint in the Ohio Court of Claims. On July 20, 2010, the court dismissed Moore's complaint as being untimely because it was not filed within 90 days of her receipt of the EEOC's right to sue notice. Further, the court concluded that the complaint was also barred under the elections of remedies doctrine.

On appeal, Moore first argued that she filed her ADEA suit within 90 days of receiving her right to sue letter; therefore, she should not be barred from pursuing this action. The Court of Appeals rejected this argument based on its ruling on the same facts in McNeely v. Ross Correctional Institute, 2006-Ohio-5414. In doing so, the Court rejected Moore's claim that R.C. §2305.19, the savings statute, tolled her dismissal of her federal claim. Since Moore's ADEA claim was governed by its own limitations period, the 90-day rule, the Court reasoned that the Ohio savings statute cannot rescue it.

As to the Title VII race discrimination claim, Moore argued that R.C. §2743.16(A) provides for a two year statute of limitations in the Court of Claims. Since she filed her suit in the Court of Claims within two years after dismissing her action in the federal court, Moore argued that the Court of Claims had jurisdiction to hear her race claim. However, the Court of Appeals rejected this argument because it interpreted the statute as requiring that suit must be filed within two years from the date the discriminatory act occurred. In this case, Moore filed her suit in the Court of Claims more than two years after her discharge. For this reason, her suit was filed outside the two-year statute of limitations.

The Court of Appeals also rejected Moore's argument that Ohio's saving statute salvaged her race claim. The Court reasoned that the saving statute would not rescue Moore's race claim unless she filed her original complaint timely. Since she did not, the Court ruled that the savings statute did not apply to allow Moore to re-file an untimely lawsuit.

Finally, Moore argued that the doctrine of equitable estoppel should apply to render her claims timely. Under such circumstances, Moore needed to prove (a) that she did not have actual notice of the filing requirement, (b) that she did not have constructive notice of the filing requirement, (c) that she exercised diligence in exercising her rights, (4) there would be no prejudice to the defendant, and (e) Moore's reasonableness in remaining ignorant of the filing requirements. However, Moore did not assert this doctrine before the Court of Claims, therefore, the Court of Appeals ruled it was waived.

By: Merl H. Wayman

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