Merhulik v. Weltman, Weinberg, & Reis Co., LPA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KATHERINE MERHULIK f.k.a., ) CASENO. 1:20 CV 1188

KATHERINE LEEDS, )

)

Plaintiff, )

)

v. ) JUDGE DONALD C. NUGENT

)

)

WELTMAN, WEINBERG & ) MEMORANDUM OPINION

REIS Co., LPA, ) AND ORDER

)

Defendant. )

This matter is before the Court on the Motion to Dismiss filed by Defendant, Weltman,

Weinberg & Reis Co., LPA (“WWR”). (Docket #10.)

I. Factual Allegations and Procedural History.

As alleged in the Complaint, the facts of this case are follows:

Plaintiff, Katherine Merhulik, was employed by WWR from July 13, 2009 through

September 1, 2016. Ms. Merhulik began her employment with WWR as a Legal Collector and,

on November 24, 2012, was promoted to the position of Quality Assurance Telephone Monitor, a

position which was later renamed Quality Assurance Specialist. (Complaint at Paragraphs 8-14.)

Ms. Merhulik alleges she was an exemplary employee; was well-qualified and educated in this

area of work; and, received a raise and multiple awards from WWR during her employment.

(Id.)

On September 1, 2016, was informed by WWR that her position was being downsized

and that her employment, along with the employment off 22 others, was to be terminated due to a

reduction in force (“RIF”). (Id. at Paragraph 16.) Ms Merhulik was 59 years old at the time.

(Id.) Ms. Merhulik’s job duties were redistributed to the remaining employees in her Department

who were ages 44, 49 and 50. (Id. at Paragraph 18.) Mr. Merhulik alleges that she was not

offered lesser collector positions upon termination, despite being qualified, and that those

positions went to other employees outside of the protected class instead of termination. (Id. at

Paragraph 19.)

Ms. Merhulik alleges that when she was terminated, WWR used scorecards to rank

employees in order to determine which employees would be terminated and that those scorecards

unlawfully included “age” as a factor. (Id. at Paragraph 20.) Ms. Merhulk alleges that WWR’s

“workforce reduction practices or process of using scorecards with age of employees stated had a

demonstrable effect of discriminating against employees on the basis of age” and

disproportionately resulted in the termination of employees over 40. (Id. at Paragraph 34.)

On February 27, 2017, Ms. Merhulik filed a lawsuit against WWR in the Cuyahoga

County Court of Common Pleas, Leeds v. Weltman, Weinberg & Reis Co., L.P.A., Cuyahoga

County Case No. CV 17 876521, asserting claims of age discrimination and wrongful

termination in violation of Ohio Public Policy, which was amended on April 17, 2017.

(Complaint at Paragraph 31.) That lawsuit was dismissed on October 18, 2018 “due to a death in

the family of one of Plaintiff's trial counsel and the unwillingness of the state trial court to

continue the trial date.” On October 9, 2020, Ms. Merhulik refiled her claims in the Cuyahoga

County Court of Common Pleas, Leeds v. Weltman, Weinberg & Reis Co., L.P.A., Case No. CV

19-922944. That case remains pending and is set for trial. (Id. at Paragraphs 42-43.)

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In January 2018, WWR posted two job openings for Collections Specialist. (Complaint

at Paragraphs 46-50.) Ms. Merhulik applied for both and states that although she was qualified,

she was never contacted by WWR regarding either position. (Id. at Paragraphs 48 and 52.) Ms.

Merhulik states that there are currently more than five job postings for Collection Specialist with

WWR and that “some of these job postings are worded to intentionally seek out younger

applicants,” reading “are you looking to start your career in the Legal field.” (Id. at Paragraphs

53 and 54.) Ms. Merhulik alleges that WWR hired several other job candidates for the second of

the two job posting who were less qualified and not in the protected age class, and that other

positions continue to remain open. (Id. at Paragraphs 65 and 66.) Ms. Merhulik asserts that

WWR “failed to train employment decision makers on how to avoid an adverse impact on

workers over the age of 40 in implementing an employment practice or decision” and “failed to

perform any statistical analysis when using or implementing employment practices and

decisions.” (Id. at Paragraphs 56 and 57.)

On October 23, 2018, Ms. Merhulik filed a Charge with the Cleveland Field Office of the

Equal Employment Opportunity Commission, Charge No. 532-2019-00136C, against WWR

alleging age discrimination and retaliation, stating as follows:!

I worked for respondent until I was laid off in September 2016. I filed a law suit

regarding Age discrimination. I applied for an open position as a debt collector on

January 22, 2018.

I believe I was not interviewed in retaliation for filing a law suit. I was not

interviewed for the open position and I have thirty years experience some of

Ms. Merhulik’s Complaint at Paragraph 70 reads, “Plaintiff made the following

allegations in the EEOC charge.” The Court has quoted the exact language set forth on

the EEOC charge (Docket #1-1), as it differs in some respects from that set forth in

Paragraph 70.

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which J got while working for respondent. I believe respondent hired a less

qualified and younger candidate than me.

I believe I have been discriminated and retaliated against due to my age (61) in

violation of the Age Discrimination in Employment Act of 1967, as amended

ADEA.

(Complaint at Paragraphs 69-70.)

Ms. Merhulik states that on January 10, 2020, WWR filed its position statement in

response to the EEOC Charge, which did not include the names, qualifications, applications or

resumes of any of the other applicants for the two WWR job postings. (Id. at Paragraph 71.) Ms.

Merhulik states that she was provided no evidence from the EEOC file and, on March 4, 2020,

the EEOC closed its Charge file and issued Plaintiff a Right to Sue letter. (Id. at Paragraph 72.)

Ms. Merhulik filed her lawsuit in this Court on May 29, 2020, alleging the following

claims:

° Unlawful Intentional Age Discrimination (Disparate Treatment) in Violation of

the ADEA, 29 U.S.C. § 621, et seq. (Count One), alleging WWR failed to

consider her for the open positions WWR posted in January 2018 for which she

was qualified and for which two less-qualified individuals under age 40 were

allegedly hired;

° Unlawful Use of Hiring Criteria Having Disparate Impact on Applicants Over 40

Years of Age in Violation of the ADEA, 29 U.S.C. § 621 et seq., (Count Two),

alleging WWR used age as a factor in screening and considering applicants for

employment which has a disparate impact on Ms. Merhulik and other qualified

applicants over the age of 40;

° Unlawful Retaliation in Violation of the ADEA, 29 U.S.C. § 623(d) (Count

Three), alleging WWR “failed to interview [her] and consider her excellent

credentials for the ‘Collections Specialist’ positions” she applied for in January

2018 in retaliation for the State Court lawsuit she had previously filed against

WWR;

° Unlawful Retaliation in Violation of Title VII, 42 U.S.C. § 2000e-3(a) (Count

Four), alleging WWR took adverse employment action against her by failing to

interview her and consider her excellent credentials for the open jobs at WWR

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because she opposed WWR’s alleged unlawful employment practices of recruiting

and hiring on the basis of age;

. Age Discrimination (Disparate Treatment) in Violation of Ohio Rev. Code §§

4112.02 et seq. and 4112.99 (Count Five), alleging that Defendant’s refusal to hire

or interview her for the open positions in January 2018 was based on her age and

constitutes disparate treatment;

° Age Discrimination (Disparate Impact) in Violation of Ohio Revised Code §§

4112.02 et seq. and 4112.99 (Count Six), alleging WWR has a history and

practice of using age as a determinative factor in employment decisions and that

the alleged unlawful practice caused WWR to hire younger applicants who were

not in the protected class to fill the open jobs for which she applied and was more

qualified;

° Retaliation in Violation of Ohio Rev. Code §§ 4112.02 et seq. and 4112.99

(Count Seven), alleging WWR retaliated against her for filing the State Court

Action by failing to interview or consider her excellent credentials for the open

posted positions in January 2018.

On August 13, 2020, WWR filed its Motion to Dismiss Counts II, IV, V and VI of the

Complaint. (Docket #10.) Ms. Merhulik filed her Opposition Brief on September 11, 2020

(Docket #13) and WWR filed a Reply Brief on September 25, 2020 (Docket #15). WWR’s

Motion to Dismiss is fully briefed and ripe for review.

II. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a defendant to

test the legal sufficiency of a complaint without being subject to discovery. See Yuhasz v. Brush

Wellman, Inc., 341 F.3d 559, 566 (6" Cir. Ohio 2003). In evaluating a motion to dismiss, the

court must construe the complaint in the light most favorable to the plaintiff, accept its factual

allegations as true, and draw reasonable inferences in favorable of the plaintiff. See Directv, Inc.

v. Treesh, 487 F.3d 471, 476 (6" Cir. Ky. 2007). The court will not, however, accept conclusions

of law or unwarranted inferences cast in the form of factual allegations. See Gregory v. Shelby

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County, 220 F.3d 433, 446 (6 Cir. Tenn. 2000).

In order to survive a motion to dismiss, a complaint must provide the grounds of the

entitlement to relief, which requires more than labels, conclusions, and a formulaic recitation of

the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65

(2007). That is, “[flactual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Jd. (internal citation omitted); see Ass’n of Cleveland Fire Fighters v. City of

Cleveland, 502 F.3d 545 548, at *2 (6 Cir. Ohio Sept. 25, 2007) (recognizing that the Supreme

Court “disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-

46, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)”). Accordingly, the claims set forth in a complaint must

be plausible, rather than conceivable. See Twombly, 127 S. Ct. at 1974.

On a motion brought under Rule 12(b)(6), the court’s inquiry is limited to the content of

the complaint, although matters of public record, orders, items appearing in the record of the

case, and exhibits attached to the complaint may also be taken into account. See Amini v.

Oberlin College, 259 F.3d 493, 502 (6" Cir. Ohio 2001). It is with this standard in mind that the

instant Motion must be decided.

Ii. Discussion.

A. Count Two — Unlawful Use of Hiring Criteria Having Disparate Impact on

Applicants Over 40 Years of Age under the ADEA, 29 U.S.C. § 621 et seq.

“The ADEA prohibits an employer from failing or refusing to hire, discharging, or

discriminating ‘against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age... .’” Geiger v. Tower Auto., 579

F.3d 614, 620 (6" Cir. Mich. 2009)(quoting 29 U.S.C. § 623(a)(1)). ADEA plaintiffs may

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recover under a disparate impact theory. Disparate impact claims ““involve employment

practices that are facially neutral in their treatment of different groups but that in fact fall more

harshly on one group than another.’” Blanford v. Exxon Mobil Corp., 483 Fed. Appx. 153, 160

(6" Cir. Tenn. 2012)(quoting Smith v. City of Jackson, 544 U.S. 228, 239 (2005); Allen v.

Highlands Hosp. Corp., 545 F.3d 387, 403 (6 Cir. Ky. 2008)). “[W]hen bringing a disparate

impact claim, plaintiffs need not show that a defendant intended to discriminate, but must

instead prove that a particular employment practice, although neutral on its face, has produced a

significant adverse effect on a protected group to which the plaintiff belongs.” Kovacevich v.

Kent State Univ., 224 F.3d 806, 830 (6" Cir. Ohio 2000).

In Count Two of her Complaint, Ms. Merhulik alleges that WWR’s “use of age as a

factor in making employment decisions had a significant adverse disparate impact on [her] and

other qualified applicants for employment . . . over the age of 40 in violation of the ADEA.” Ms.

Merhulik states, “By using age as a factor in screening and considering applicants for

employment ... [WWR] discriminated against qualified applicants over the age of 40.”

The intentional use of age as a hiring criteria is not facially neutral policy or practice, but

rather an allegation of a facially discriminatory practice. Ms. Merhulik references the

“scorecards” allegedly used by WWR in its decision to terminate Ms. Merhulik’s employment in

2016 as evidence of a “practice or process” that “had a demonstrable effect of discriminating

against employees on the basis of age.” (Docket #13 at p. 5, citing Paragraph 34 of the

Complaint.) The scorecard is alleged to have expressly included age as a factor and, therefore, it

is not facially neutral. Furthermore, the “scorecards” were allegedly used in 2016, when Ms.

Merhulik was terminated, and there is no allegation that the “scorecard” was ever used by WWR

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in determining which applicants would be interviewed or hired in January 2018. Therefore,

while the “scorecard” may or may not be relevant evidence in some capacity relative to her other

claims, it is not a neutral policy or practice that resulted in an adverse disparate impact on Ms.

Merhulik or other qualified applicants over the age of 40 with regard to the interview and hiring

process in 2018.

In support of her ADEA disparate impact claim, Ms. Merhulik also alleges that WWR

failed to properly train hiring managers; failed to appropriately assess the impact its hiring

decisions had on workers over the age of 40; and, that WWR’s job postings were worded to

intentionally attract younger applicants, reading “are you looking to start your career in the legal

field?”

In her EEOC Charge, filed on October 22, 2018, Ms. Merhulik alleged:

I worked for respondent until I was laid off in September 2016. I filed a law suit

regarding Age discrimination. I applied for an open position as a debt collector on

January 22, 2018.

I believe I was not interviewed in retaliation for filing a law suit. I was not

interviewed for the open position and I have thirty years experience some of

which J got while working for respondent. I believe respondent hired a less

qualified and younger candidate than me.

I believe I have been discriminated and retaliated against due to my age (61) in

violation of the Age Discrimination in Employment Act of 1967, as amended

ADEA.

Administrative exhaustion, although not jurisdictional, is a statutory prerequisite to

maintaining a claim under the ADEA. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 401 (6"

Cir. Ky. 2008.) A claim must be reasonably expected to grow out of the EEOC's investigation of

the charge if not explicitly raised therein. Jd. at 402.

Ms. Merhulik’s EEOC Charge does not identify a neutral policy that caused a disparate

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impact, but rather alleges intentional action — specifically, that WWR’s alleged failure to

interview and hire her in 2018 was in retaliation for filing her earlier State court lawsuit and

because of her age. There is no mention whatsoever of practices or policies of WWR which she

claims resulted in a disparate impact on older employees and the language of the EEOC Charge

failed to include sufficient facts which would trigger an investigation into whether a facially

neutral policy had the effect of discriminating against older individuals.

Furthermore, as set forth above, to state a disparate impact claim, an employee must

identify an employer's “facially neutral policy” and show that it has an adverse impact on a

protected group. EEOC v. Honda of Am., Mfg., Inc., Case No. 2:06 CV 233, 2007 U.S. Dist.

LEXIS 37584, at *12-15 (S.D. Ohio May 23, 2007) (“a plaintiff must still identify, at the

pleading stage, a specific facially neutral policy or practice that resulted in disparate impact”)

(citing White v. Am. Axle & Mfg., Inc., Case No. 05 CV 72741, 2006 U.S. Dist. LEXIS 17462, at

*15-17 (E.D. Mich. Feb. 14, 2006)). “[I]t is not enough to simply allege that there is a disparate

impact on workers, or point to a generalized policy.” Smith v. City of Jackson, 544 U.S. 228, 241

(2005). Thus, even if not otherwise precluded by a failure to exhaust, Ms. Merhulik’s claims

regarding the failure to train or assess are conclusory, fail to identify any specific, facially neutral

practice or policy of WWR, and, therefore, are insufficient to support her disparate impact claim.

Likewise, there is nothing in the Complaint, aside from speculation, to demonstrate any disparate

impact resulted from the wording of the 2018 job postings. Ms. Merhulik did in fact apply for

the open positions in response to the job postings and, although WWR advertised “are you

looking to start” your career in the legal field, her claim that the word “start” had a disparate

impact on older applicants, without more, is insufficient to state a claim.

For the foregoing reasons, Count Two of the Complaint is hereby dismissed.

B. Count Four — Unlawful Retaliation under Title VII, 42 U.S.C. § 2000e-3(a).

Ms. Merhulik alleges WWR failed to interview her or consider her for the “Collections

Specialist” position described in its two January 2018 job postings and that the failure to

interview her or consider het was in retaliation for the prior age discrimination lawsuits and

EEOC Charge she had filed against WWR.

Section 2000e-3(a) of Title VII “‘prohibits an employer from retaliating against an

employee who has ‘opposed’ any practice by the employer made unlawful under Title VII; and

prohibits an employer from retaliating against an employee who has ‘participated’ in any matter

in an investigation under Title VII.’” Tingle v. Arbors at Hilliard, Case No. 2:09 CV 1159, 2011

U.S. Dist. LEXIS 43281, *15 (S.D. Ohio Apr. 21, 2011) (quoting Johnson v. Univ. of Cincinnati,

215 F.3d 561, 578 (6" Cir. Ohio 2000); see also Booker v. Brown & Williamson Tobacco Co.,

879 F.2d 1304, 1312 (6" Cir. Mich. 1989)). Ms. Merhulik’s “expression of opposition . . . must

concern a violation of the statute for [her] to receive protection under Title VII.” Tingle, 2011

USS. Dist. LEXIS 43281, at *16 (citing Monheimer v. Nielson, Case No. 1:08 CV 356, 2010 U.S.

Dist. LEXIS 120028, at *5 (S.D. Ohio Sept. 27, 2010)).

Title VII makes it unlawful for an employer to discriminate against an employee on the

basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Title □□□□□ anti-

discrimination protection does not extend to age discrimination. Clark v. City of Dublin, 178 F.

App’x 522, 525 (6" Cir. Ohio 2006)(citing Kremer v. Chem Constr. Corp., 456 U.S. 461, 466 n.4

(1982); Williamson v. Hartmann Luggage Co., 34 F. Supp. 2d 1056, 1063 (M.D. Tenn 1988);

Monheimer v. Nielsen, Case No 1:08 CV 356, 2010 U.S. Dist. LEXIS 120028, at *5 (S.D. Ohio

Sept. 27, 2010); Wakefield v. Children’s Hosp., Case No. C2 06 1034, 2008 U.S. Dist. LEXIS

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91835, at *4 (S.D. Ohio Aug. 13, 2009); Akar v. Prescott Hotel, Case No. C 07 4531, 2008 U.S.

Dist. LEXIS 43066, at *1 (N.D. Cal. June 2, 2009)). Accordingly, Count Four of Ms. Merhulik’s

Complaint must be dismissed.

C. Count Five and Six — Age Discrimination Claims under Ohio Rev. Code §§

4112.02 and 4112.99,

In Count Five, Ms. Merhulik alleges that WWR’s “refusal to hire or even interview [her]

for the First Job Posting and Second Job Posting despite her superior qualifications on the basis

of her age constitutes disparate treatment” in violation of Sections 4112.02 et seg. and 4112.99.

In Count Six, Ms. Merhulik alleges that WWR “has a history and practice of using age as a

determinative factor in employment decisions” which resulted in the “hiring of several younger

applicants who were not in the protected class to fill the Second Job Posting, despite those

applicants having inferior qualifications and less relevant work experience than Plaintiff’ in

violation of Section 4112.02 et seg. and 4112.99.

Count Five

WWR argues that by filing her Charge with the EEOC, Ms. Merhulik elected to pursue an

administrative remedy and is, therefore, precluded from filing a discrimination claim under

Sections 4112.02 and 4112.99. Courts are divided as to whether filing a charge with the EEOC

constitutes an election of remedies for purposes of a State law discrimination claim and the Ohio

Supreme Court has not directly addressed this issue.

In Neal v. Franklin Plaza Nursing Home, 2009-Ohio-2034 (8" Dist. Ct. App. April 30,

Ms. Merhulik references Section 4112.02(C) throughout Count Five. However,

Count Five prohibits discrimination by labor unions. As this case does not involve a

labor union, the Court will assume the reference to subsection (C) is a typographical

error.

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2009), the Ohio Eighth District Court of Appeals held that because the plaintiff “filed a charge

with the EEOC and never indicated that she would forego an investigation but was filing for

technical purposes only, we find that her charge to the EEOC was likewise deemed filed with the

OCRC, and thus [the plaintiff] is barred from bringing a private age discrimination claim under

R.C. 4112.02 and 4112.99.” Jd. at P19. Prior to Neal, this Court also held that filing a charge

with the EEOC constitutes and election of remedies for purposes of a State law discrimination

claim. Williams v. Allstate Ins. Co., Case No. 5:04 CV 2435, 2005 U.S. Dist. LEXIS 40799

(N.D. Ohio Apr. 19, 2005), adopted in relevant part by Williams v. Allstate Ins. Co., 2005 U.S.

Dist. LEXIS 40800 (N.D. Ohio May 31, 2005). However, decisions of Federal courts since that

time have reached the opposite conclusion. Compare Hillery v. Fifth Third Bank, Case No. 2:08

CV 1045, 2009 U.S. Dist. LEXIS 39658 (S.D. Ohio May 11, 2009); Gray v. Allstate, Case No.

1:03 CV 910, 2005 U.S. Dist. LEXIS 40793 (S.D. Ohio Sept. 26, 2005); Williams v. Allstate Ins.

Co., Case No. 5:04 CV 2435, 2005 U.S. Dist. LEXIS 40799 (N.D. Ohio Apr. 19, 2005), with

Fambrough-McCoy v. White Castle Sys., Case No. 1:17 CV 19, 2017 U.S. Dist. LEXIS 112915

(S.D. Ohio July 20, 2017); Fortunato v. Univ. Health Sys., Case No. 1:15 CV 1940, 2016 U.S.

Dist. LEXIS 12249 (N.D. Ohio Feb. 2, 2016);? Esparza v. Pierre Foods, 923 F. Supp. 2d 1099

discussed by Judge Gaughan in Fortunato:

“Although the Ohio Supreme Court has not yet addressed the issue, it did address whether

the filing of a state court action prevents the later filing of a claim with the OCRC for the

purpose of meeting the ADEA’s requirements. The court held that it did not. See,

Morris v. Kaiser Engineers, 14 Ohio St. 2d 45, 14 Ohio B. 440, 471 N.E. 2d 471 (Ohio

1984)(“Therefore, this court holds that a claimant who has previously filed an age

discrimination action under R.C. 4101.17 is not barred from filing a claim with the

OCRC pursuant to R.C. 4112.05 in order to satisfy the mandatory prerequisite to an

action under the ADEA.”) Thus, although not directly on point, the Supreme Court of

Ohio has shown reluctance in interpreting the election of remedies provision in such a

way that would require a party to choose between state and federal judicial relief. Based

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(S.D. Ohio 2013); Flint v. Mercy Health Partners of Sw. Ohio, 940 F. Supp. 2d 243 (S.D. Ohio

2013)(quoting McLaughlin v. Excel Wire & Cable, Inc., 787 F.2d 591 (6" Cir Ohio 1986));

Johnson v. Ohio Cas. Ins. Co., Case No. 1:05 CV 742, 2006 U.S. Dist. LEXIS 73391 (S.D. Ohio

Sept. 29, 2006); Spengler v. Worthingon Cylinders, 438 F. Supp. 2d 805 (S.D. Ohio 2006)). The

Court is thus cognizant of the fact that there is a split between Courts which would make this

issue unclear, even to an attorney or litigant with a deep familiarity with the law.

In briefing, Ms. Merhulik argues that even if the election of remedies doctrine precludes

her claim under Sections 4112.02 and 4112.09, she has, in the alternative, asserted a viable claim

under Ohio Rev. Code § 4112.14. Ohio Rev. Code § 4112.14(A) provides as follows:

No employer shall discriminate in any job opening against any applicant or

discharge without just cause any employee aged forty or older 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.

“A violation of R.C. 4112.14 (formerly 4101.17) . . . can also support a claim for damages,

injunctive relief, or any other appropriate relief under R.C. 4112.99. This fourth avenue of relief

is not subject to the election of remedies.” Leininger v. Pioneer Nat'l Latex, 115 Ohio St. 3d

311, 318 (2007). “A plaintiff may initially plead R.C. §§ 4112.02, 4112.14 and 4112.99

simultaneously and in the alternative, but ‘must elect his sole remedy when an employer files a

motion to dismiss.’” Wood v. Summit Cty. Fiscal Office, 377 F. App's 512, 514 (6th Cir. 2020)

on this reluctance, as well as the reasoning set forth in the Sixth Circuit opinions, which

predict that the Ohio Legislature did not intend to bar federal court pendent jurisdiction of

state statutory age discrimination claims, the Court finds that the filing of a charge with

the EEOC is not an election of remedies pursuant to O.R.C. § 4112.08. This result is in

line with the longstanding principle that state and federal employment discrimination

procedures are intended to complement each other.”

Fortunato, 2016 U.S. Dist. LEXIS 12449 at *9-10.

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(citation omitted). In other words, a plaintiff can postpone deciding which provision to rely upon

until faced with a motion to dismiss, but cannot, after that juncture, continue to plead multiple

bases and ‘ask the court to sort it out.’” Conrad v. U.S. Bank Nat'l Ass'n, 391 F. Supp. 3d 780,

788-89 (S.D. Ohio June 19, 2019).

The decision of the Ohio Supreme Court in Leininger expressly states that a claim under

Section 4112.14 is not subject to the election of remedies, thus providing an alternative route for

Ms. Merhulik to raise her State law disparate treatment claim. Accordingly, the Court will deny

WWR’s Motion to Dismiss as to Count V of the Complaint.

Count Six

Just as under Federal law, disparate impact discrimination under Ohio law “involves

employment practices that are facially neutral in their treatment of different groups, but fall more

harshly on one group.” Brown v. Worthington Steel, Inc., 2005-Ohio-4571, 2005 Ohio App.

LEXIS 4136, at *2 (10" Dist. Ct. App. Sept. 1, 2005). To establish a prima facie case of

disparate impact discrimination under Ohio law, a plaintiff must: (1) identify the “particular

employment practice;” (2) show a disparate impact on a protected group; and, (3) prove the

employment practice caused the disparity. Miller v. Potash Corp. of Saskatchewan, Inc.,

2010-Ohio-4291, 2010 Ohio App. LEXIS 3625, at *12 (Ohio App. 3rd Dist. 2010) (citing

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008)).

Ms. Merhulik alleges that WWR “has a history and practice of using age as a

determinative factor in employment decisions.” As set forth above, the employee “scorecards”

are not facially neutral and there is no allegation that the “scorecards” were used in conjunction

with hiring for the 2018 job openings; threadbare allegations regarding the failure to train or

assess do not identify a “particular employment practice,” are conclusory, and cannot sustain her

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disparate impact claim; and, speculation that the wording of the job posting may have kept older

applicants other than Ms. Merhulik from applying for a job at WWR, without more, is

insufficient to state a claim for disparate impact discrimination. Accordingly, Count Six of the

Complaint must be dismissed.

IV. Conclusion.

For the reasons stated above, the Motion to Dismiss (Docket #10) filed by WWR is

hereby GRANTED IN PART. Counts II, IV and VI of the Complaint are hereby dismissed.

IT IS SO ORDERED.

DONALD C. NUGENT

Senior United States District Judge

DATED: 7 Low

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