[Cite as Worley v. Newton Falls School Bd. of Edn., 2014-Ohio-5385.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


JENIFER WORLEY,                                        :           OPINION

                 Plaintiff-Appellant,                  :
                                                                   CASE NO. 2014-T-0024
        - vs -                                         :

NEWTON FALLS EXEMPTED VILLAGE                          :
SCHOOL BOARD OF EDUCATION, et al.,
                                                       :
                 Defendants-Appellees.
                                                       :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CV
01792.

Judgment: Reversed and remanded.


Ned C. Gold, Jr. and Mark M. Mikhaiel, Ford, Gold, Kovoor & Simon, LTD., 8872 East
Market Street, Warren, OH 44484 (For Plaintiff-Appellant).

Jessica K. Philemond and Derek L. Towster, Scott, Scriven & Wahoff, LLP, The
Midland Building, 250 East Broad Street, #900, Columbus, OH 43215 (For Defendants-
Appellees).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Jenifer Worley, appeals the Judgment of the Trumbull

County Court of Common Pleas, granting summary judgment in favor of defendants-

appellees, collectively Newton Falls Exempted Village School Board of Education, with

respect to her claim of disability discrimination. The issue before this court is whether

the exhaustion requirement of R.C. 4112.14(C) applies to claims of disability

discrimination. For the following reasons, we reverse the decision of the court below.
       {¶2}   On August 29, 2013, Worley filed a Complaint against the Newton Falls

Exempted Village School1, asserting causes of action for Disability Discrimination

pursuant to R.C. Chapter 4112 and Intentional and/or Negligent Infliction of Emotional

Distress.

       {¶3}   On September 30, 2013, Newton Falls School filed its Answer.

       {¶4}   On January 31, 2014, Newton Falls School filed a Motion for Summary

Judgment, pursuant to Civil Rule 56(C) based on Worley’s failure “to exhaust her

administrative remedies as required under R.C. § 4112.14(C) and R.C. § 2711.01.” On

February 20, 2014, Worley filed a Memorandum Opposing Defendants’ Motion for

Summary Judgment. On March 6, 2014, Newton Falls School filed a Reply in Support

of its Motion for Summary Judgment. On March 14, 2014, Worley filed a Re-reply to

Defendants’ Reply in Support of its Motion for Summary Judgment.

       {¶5}   On March 20, 2014, the trial court issued a Judgment Entry, granting

summary judgment in favor of Newton Falls School.

       {¶6}   On April 9, 2014, Worley filed her Notice of Appeal.

       {¶7}   On appeal, Worley raises the following assignments of error:

       {¶8}   “[1.] The trial court committed prejudicial error in granting defendants-

appellees, Newton Falls Exempted Village School Board[’s], motion for summary

judgment based upon its opinion Mrs. Worley failed to exhaust her administrative

remedies as required by R.C. 4112.14(C) (age discrimination formalities in the

employment setting).”

       {¶9}   “[2.] The trial court committed prejudicial error in granting defendants-

appellees[’] motion for summary judgment based upon its ruling that Mrs. Worley had an

1. Other named defendants included: David J. Wilson, Paul Woodard, Michael Staton, Donald Baker,
Brenda Koontz, David Rapczak, Debra Davis, and Edwin Ballas.

                                               2
opportunity to previously arbitrate her action against defendants-appellees pursuant to

R.C. 4112.14(C).”

       {¶10} Pursuant to Civil Rule 56(C):

              Summary judgment shall be rendered forthwith if the pleadings,

              depositions,    answers     to   interrogatories,   written   admissions,

              affidavits, transcripts of evidence, and written stipulations of fact, if

              any, timely filed in the action, show that there is no genuine issue

              as to any material fact and that the moving party is entitled to

              judgment as a matter of law. * * * A summary judgment shall not

              be rendered unless it appears from the evidence or stipulation, and

              only from the evidence or stipulation, that reasonable minds can

              come to but one conclusion and that conclusion is adverse to the

              party against whom the motion for summary judgment is made, that

              party being entitled to have the evidence or stipulation construed

              most strongly in the party’s favor.

       {¶11} “[T]he determination of whether the trial court properly granted summary

judgment below involves only questions of law and is considered on a de novo basis.”

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

       {¶12} The dispositive issue before this court is whether R.C. 4112.14(C) applies

to claims of disability discrimination.

       {¶13} In Ohio, it is “an unlawful discriminatory practice * * * [f]or any employer,

because of the * * * disability * * * of any person, to discharge without just cause, to

refuse to hire, or otherwise to discriminate against that person with respect to hire,

tenure, terms, conditions, or privileges of employment, or any matter directly or

                                               3
indirectly related to employment.” R.C. 4112.02(A). “Whoever violates this chapter is

subject to a civil action for damages, injunctive relief, or any other appropriate relief.”

R.C. 4112.99.

        {¶14} The Ohio Supreme Court has observed that “R.C. 4112.99 functions as a

gap-filling provision, establishing civil liability for violations of rights for which no other

provision for civil liability has been made.” (Citation omitted.) Meyer v. United Parcel

Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, ¶ 27. Thus, “[a]n

aggrieved party may, pursuant to R.C. 4112.99, institute an independent civil action to

seek redress for discrimination on the basis of physical disability.” Elek v. Huntington

Natl. Bank, 60 Ohio St.3d 135, 137, 573 N.E.2d 1056 (1991), paragraph one of the

syllabus. The Court has also observed that R.C. 4112.99 provides the sole civil remedy

to redress discrimination based on disability under R.C. Chapter 4112.                     “[N]o other

section of R.C. Chapter 4112 confers an alleged victim of handicap2 discrimination the

right to pursue a civil action.” Id. at 137.

        {¶15} In Elek, the plaintiff alleged that the defendant had “engaged in

discriminatory practices in violation of R.C. 4112.02(A).” Id. at 136. The defendant

moved the trial court to dismiss the complaint “upon the basis that [plaintiff] had failed to

exhaust his administrative remedies,” by not instituting administrative proceedings prior

to filing his civil action. Id. at 135; Smith v. Friendship Village of Dublin, 92 Ohio St.3d

503, 506, 751 N.E.2d 1010 (2001). The Ohio Supreme Court subsequently interpreted

Elek as holding that, “under R.C. 4112.99, an individual may institute an independent

civil action for discrimination on the basis of physical handicap even though that




2. In 1999, R.C. 4112.02(A) was modified to substitute the word “disability” for “handicap.” 1999 Am.H.B.
No. 264.
                                                   4
individual has not invoked and exhausted his or her administrative remedies.” Smith at

506.

        {¶16} Newton Falls School’s argument that Worley must exhaust her

administrative remedies is based on R.C. 4112.14(C): “The cause of action described in

division (B) of this section [for age discrimination] and any remedies available pursuant

to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of

discharges where the employee has available to the employee the opportunity to

arbitrate the discharge or where a discharge has been arbitrated and has been found to

be for just cause.”3

        {¶17} Newton Falls School contends that Worley was under an obligation to

arbitrate the discharge pursuant to her collective bargaining agreement, inasmuch as

her discrimination claim is based on a violation of R.C. 4112.02(A), i.e., a remedy




3. The full text of this section reads:
        4112.14 Age discrimination by employers
                  (A) 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.
                  (B) Any person aged forty or older who is discriminated against in any job opening
        or discharged without just cause by an employer in violation of division (A) of this section
        may institute a civil action against the employer in a court of competent jurisdiction. If the
        court finds that an employer has discriminated on the basis of age, the court shall order an
        appropriate remedy which shall include reimbursement to the applicant or employee for
        the costs, including reasonable attorney’s fees, of the action, or to reinstate the employee
        in the employee’s former position with compensation for lost wages and any lost fringe
        benefits from the date of the illegal discharge and to reimburse the employee for the costs,
        including reasonable attorney’s fees, of the action. The remedies available under this
        section are coexistent with remedies available pursuant to sections 4112.01 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.
                  (C) The cause of action described in division (B) of this section and any remedies
        available pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be
        available in the case of discharges where the employee has available to the employee the
        opportunity to arbitrate the discharge or where a discharge has been arbitrated and has
        been found to be for just cause.
                                                     5
available pursuant to sections 4112.01 to 4112.11 of the Revised Code.                Worley

counters that R.C. 4112.14(C) properly applies only to age discrimination claims.

       {¶18} In support, Newton Falls School relies on Hopkins v. United Parcel Serv.,

Inc., 1st Dist. Hamilton No. C-990392, 2000 Ohio App. LEXIS 443 (Feb. 11, 2000). In

Hopkins, the plaintiff brought a claim of race discrimination under R.C. Chapter 4112.

Id. at 2. The Court of Appeals for the First District held that “[t]he plain language of

[R.C. 4112.14(C)] indicates the General Assembly’s intent to bar civil actions for age

discrimination as well as ‘other remedies available under this chapter’ when the

employee has the ability to arbitrate his claims.” Id. at 5. The First District necessarily

concluded that an age discrimination claim constituted a “remedy” within the context of

R.C. Chapter 4112.       Id. at 5-6 (“[t]o hold that the statute applies only to age-

discrimination claims would in effect be to eliminate the language regarding ‘other

remedies,’ a modification this court is not empowered to effectuate”).

       {¶19} A different conclusion was reached in Luginbihl v. Milcor Ltd. Partnership,

3rd Dist. Allen No. 1-01-162, 2002-Ohio-2188. In Luginbihl, the plaintiff raised a claim

of handicap/disability discrimination in violation of R.C. 4112.02. Id. at ¶ 8. The Court

of Appeals for the Third District concluded that “R.C. 4112.14(C) is not applicable to the

case at bar nor to any non-age discrimination claim brought pursuant to R.C. 4112.99.”

Id. at ¶ 36. Unlike the First District, the court in Luginbihl did not consider the disability

discrimination claim “a remedy under 4112.02 for there is no remedy provided therein.”

Rather, the plaintiff was “enforcing the ‘thou shall not discriminate’ language of R.C.

4112.02 through an action brought pursuant to R.C. 4112.99.” (Emphasis sic.) Id.

The Third District concluded that “[n]owhere in the language or the interpretation of the




                                              6
statute could it be said that R.C. 4112.14(C) applies to actions brought pursuant to R.C.

4112.99.” Id.

       {¶20} The Third District also noted that R.C. 4112.14(C) was originally codified

under R.C. Chapter 4101.17, as part of the Ohio Age Discrimination Statute, which

barred “individuals [from] bring[ing] age discrimination claims to the court of common

pleas when arbitration was available.” Id. at ¶ 38. In 1995, this section was recodified

as R.C. 4112.14(C).       The court accepted the argument that “nothing about the

recodification of the age discrimination statute suggests that the longstanding statutory

limit on age-discrimination lawsuits in Ohio has now been extended to lawsuits involving

all other forms of discrimination as well.” Id.

       {¶21} We find the Third District’s decision in Luginbihl to be persuasive. The

Third District’s conclusion that “R.C. 4112.14(C) does not apply to any claim not

sounding in age discrimination” brought pursuant to R.C. 4112.99, 2002-Ohio-2188, at ¶

39, is consistent with the Ohio Supreme Court’s pronouncements in Elek and Smith. In

particular, Elek affirmed that R.C. 4112.99 was the only Revised Code section to confer

a remedy to pursue a civil action for disability discrimination, and Smith interpreted Elek

to mean that this remedy existed independent of any recourse to administrative

remedies. Elek, 60 Ohio St.3d at 137, 573 N.E.2d 1056; Smith, 92 Ohio St.3d at 506,

751 N.E.2d 1010.

       {¶22} Luginbihl has also been found persuasive by Ohio federal district courts.

Pingle v. Richmond Hts. Local School Dist. Bd. of Ed., N.D. Ohio No. 1:12-cv-02892,

2013 U.S. Dist. LEXIS 141194, 14 (Sept. 30, 2013) (“§ 4112.14(C) is properly limited to

age discrimination claims, as its statutory history and placement in the ‘age

discrimination by employers’ statute would suggest”); Braud v. Cuyahoga Cty. Career

                                              7
Ctr., N.D. Ohio No. 1:06 CV 1059, 2007 U.S. Dist. LEXIS 22526, 16 (Mar. 27, 2007)

(“[t]here is no requirement that an administrative process be followed * * * prior to

bringing suit under §§ 4112.02 and 4112.99 for handicap discrimination”) (cases cited).

No court has followed Hopkins for the proposition that R.C. 4112.14(C) applies to non-

age discrimination claims.

       {¶23} Finally, our decision to overturn the dismissal of Worley’s claim is

supported by the Ohio Supreme Court’s decision in Dworning v. Euclid, 119 Ohio St.3d

83, 2008-Ohio-3318, 892 N.E.2d 420. In Dworning, a public employee filed suit alleging

claims of, among other things, disability discrimination. Id. at ¶ 3. The defendants

moved for summary judgment based on the plaintiff’s failure to exhaust his

administrative remedies. Id. at ¶ 4. The Supreme Court concurred with the plaintiff’s

position that “the statutory language of R.C. Chapter 4112 is clear and unambiguous,”

and does not require “a public employee to exhaust internal administrative remedies

before filing a civil action against the employer.” Id. at ¶ 7.

       {¶24} The Supreme Court emphasized that “R.C. Chapter 4112 is remedial

legislation designed to prevent and eliminate discrimination.” Id. at ¶ 27; R.C. 4112.08

(“[t]his chapter shall be construed liberally for the accomplishment of its purposes”).

The Court noted that the amendment of R.C. 4112.99, in 1987, created “two avenues of

recovery under R.C. Chapter 4112: administrative relief through the OCRC [Ohio civil

rights commission] or a civil suit filed in a court of common pleas.” Id. at ¶ 30. Citing

Elek, the Court stated that “an individual [may] file a civil action to remedy discrimination

without having invoked the administrative remedies available through the OCRC,” and

citing Smith, that “the filing of a charge of discrimination with the OCRC does not

preclude a person from filing a civil action under R.C. 4112.99.” (Citations omitted.) Id.

                                              8
       {¶25} With respect to R.C. 4112.14(C), the Supreme Court held that “for certain

age discrimination claims, the General Assembly has expressed its intent to prefer

arbitration over other remedies when arbitration is available * * *, however, [it] has not

manifested a similar intent for claims of other forms of discrimination.”      (Emphasis

added.) Id. at ¶ 41. “[U]nless and until the General Assembly expressly incorporates

an exhaustion requirement into R.C. Chapter 4112, we have no basis for requiring it as

a matter of course to those workers who have available civil service remedies.”

(Citation omitted.) Id.

       {¶26} The Supreme Court’s ultimate holding in Dworning is equally applicable to

Worley: “The protection of an individual’s right to pursue private remedies is too central

an aspect of Ohio’s commitment to nondiscrimination to be limited to, or delayed by, an

administrative process. * * * [A] public employee alleging employment discrimination in

violation of R.C. Chapter 4112 need not exhaust the administrative remedy of appeal to

a civil service commission before pursuing the civil action allowed in R.C. 4112.99.” Id.

at ¶ 43.

       {¶27} Worley’s assignments of error are with merit.

       {¶28} For the foregoing reasons, the Judgment of the Trumbull County Court of

Common Pleas, granting summary judgment in favor of Newton Falls School with

respect to Worley’s claim of disability discrimination, is reversed.      This matter is

remanded to the trial court for further proceedings consistent with this opinion. Costs to

be taxed against the appellees.


CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.
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