Mowery Youell & Galeano, LTD is pleased to report a substantial favorable verdict by one of its attorneys on an age discrimination case previously reported in its September 10, 2012 blog. In Richard W. Warden v. Ohio Department of Natural Resources, ___- Ohio- ___, Court of Claims Case No. 2011-01232 (Apr. 4, 2012), the Ohio Court of Claims concluded that ODNR discriminated against Warden, a former retired employee, by rejecting him for re-hire under a policy that excluded the re-hire of all former retired employees. The Court found that the policy had a disparate impact upon former employees over 40 years of age who had retired and pursued re-hire into employment at ODNR. Since Ohio Revised Code 4112.14 protected individuals over 40 years of age from discrimination in hiring, the Court ruled that ODNR's no-rehire prohibition violated the statute.
Acting General Counsel of the National Labor Relations Board (NLRB) Lafe E. Solomon issued Memorandum GC 13-02 on January 9, 2013 modifying existing Board policy to now permit Agency settlements to include front pay. The memorandum confirmed the long standing favoritism of Agency settlements towards reinstatement; however, it acknowledged that parties and discriminatees routinely negotiate a waiver of reinstatement in return for a monetary amount.
Effective January 1, 2013, the new minimum wage in Ohio rose 15 cents to $7.85 per hour. The minimum hourly wage for non-tipped employees is linked to inflation under a state constitutional amendment Ohio voters approved in 2006. The minimum wage uses the Consumer Price Index to adjust for inflation, as tracked from August to August every 12 months. Ohio was one of 10 states that raised its minimum wage at the start of the new year between 10 and 35 cents, modestly boosting the incomes of nearly 1 million low-paid workers.
The Sixth Circuit's age discrimination decision in Gaglioti v. Levin group, Inc., Sixth Circuit Case No. 11-3744 (Dec. 13, 2012), held shifting explanations for discharging an employee may constitute evidence of age discrimination. Joseph Gaglioti worked in the employer's accounting department. After ten months of employment, he was fired. The employer initially reasoned that Gaglioti was fired because his temporary employment had ended. But after Gaglioti filed suit and alleged that his employer fired him by considering his age, the employer argued that he was terminated due to poor performance. The district court concluded that Gaglioti established a prima facie of age discrimination, but granted summary judgment in favor of the employer when it found that the employer presented a legitimate non-discriminatory reason for its discharge decision and Gaglioti failed to present any evidence that the decision was pretextual.
The Ohio Court of Claims recently found policies prohibiting the hiring of candidates who were also receiving retirement benefits constituted Age Discrimination due to their disparate impact. In Warden v. Ohio Dept. of Natural Resources, 2012-Ohio-3854 (Ohio Court of Claims, Apr. 4, 2012), the Court found for the applicant as the policy could only impact employees over 40 years of age.
An Ohio Court rejected an employee's age discrimination claim based on a University policy rejecting the rehire of former retired employees. Dunaway v. University of Cincinnati, Court of Claims No. 2010-11137 (Jan. 20, 2012): Dunaway applied for employment as an Air Quality Technician with the University of Cincinnati's Administration and Finance Department. At the time of his application, Dunaway was 58 years old and had retired from the University in a different position. The department had a written policy that discouraged the rehire of former retired employees unless approved by its vice president under certain listed criteria. Dunaway was not interviewed for the position and was rejected for rehire. Dunaway then filed suit in the Ohio Court of Claims and alleged that the University's rejection of his application was discriminatory based on his age because of the University's no re-hire policy of former retired employees.
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.