Blohm v. Wilmington City Schools et al

Filing 16

ORDER denying 4 Motion to Dismiss. Signed by Judge Michael R. Barrett on 7/24/17. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Edward F. Blohm,
Plaintiff,

Case No. 1:16cv591

v.

Judge Michael R. Barrett

Wilmington City Schools, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Defendants’ Motion to Dismiss. (Doc. 4)
Plaintiff filed a Response in Opposition (Doc. 6), and Defendants filed a Reply (Doc. 8).
Thereafter, Plaintiff filed a Notice of Supplemental Authority, and Defendants filed a
Response to Plaintiff’s Notice. (Docs. 13, 15).
I.

BACKGROUND
The following recitation of facts is based upon the allegations in the Complaint.

Plaintiff Edward F. Blohm, was employed by Defendant Wilmington City Schools Board
of Education (“the Board”) as an Athletic Director and Human Resources Director for
Defendant Wilmington City Schools. (Doc. 1, ¶ 9-10). Defendant Ron Sexton is the
Superintendent for Wilmington City Schools. (Id., ¶ 4).
At the time of the filing of the Complaint, Plaintiff was 63-years old. (Id., ¶ 8).
Plaintiff was employed by the Board under the terms of a 3-year contract which began
on July 1, 2012 and was set to expire on June 30, 2015. (Id., ¶ 11). On January 6,
2015, Sexton told Plaintiff that the Board did not intend to renew Plaintiff’s contract
when it expired on June 30, 2015. (Id., ¶ 19).

Plaintiff maintains that pursuant to Ohio Revised Code § 3319.02(D), he was
entitled to: (1) an annual evaluation by Sexton or his designee in each year of his
contract; and (2) a preliminary and final review in the final year of his contract. (Id., ¶
12).

Plaintiff was not evaluated in the 2012/2013 school year, and while he was

provided with a preliminary review in the final year of his contract, he was not provided
with a final review. (Id., ¶ 13). Plaintiff maintains that because the Board failed to
perform these evaluations, pursuant to Ohio Revised Code § 3319.02(D), he was to be
automatically re-employed by operation of law for two years following the expiration of
his contract on June 30, 2015. (Id., ¶ 14).
On January 9, 2015, Plaintiff was exiting his office at the same time that various
Board members were leaving a meeting. (Id., ¶ 20). Plaintiff overheard a person whom
he believes was member of the Board, Bill Liermann, saying to an unknown individual
that non-renewing Plaintiff’s contract would give the Board “a chance to get some
younger blood” in his role. (Id., ¶ 20).
Beginning in February of 2015, Sexton began pressuring Plaintiff to tell him when
Plaintiff planned to retire. (Id., ¶ 23). On February 24, 2015, Board member Kevin
Snarr told Plaintiff that the Board would agree to renew his contract for two years at the
March meeting of the Board if Plaintiff submitted a resignation/retirement notice
effective December 31, 2016. (Id., ¶ 24). On March 18, 2016, Plaintiff submitted a
retirement/resignation notice. (Id., ¶ 26). Plaintiff claims that he submitted the notice
solely because the Board made renewal of his contract contingent upon his doing so,
and he did not wish to retire on December 31, 2016. (Id., ¶ 27). On March 23, 2015,

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the Board renewed Plaintiff’s contract, subject to Plaintiff’s resignation/retirement on
December 31, 2016.

(Id., ¶ 28).

On May 26, 2016, Plaintiff revoked his

resignation/retirement notice by letter to Sexton and the Board. (Id., ¶ 29).
Plaintiff brings claims for age discrimination in violation of the Age Discrimination
in Employment Act, 29 U.S.C. §621, et seq. and Ohio Revised Code Chapter 4112; and
a contract claim for “lack of consideration” based upon Ohio Revised Code §
3319.02(D).
Defendants argue that Plaintiff’s Complaint fails to state a claim and moves for
dismissal of all claims under Federal Rule of Civil Procedure 12(b)(6).
II.

ANALYSIS
A. Standard of review
In reviewing a motion to dismiss for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light
most favorable to the plaintiff, accept its allegations as true and draw all reasonable
inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d
426, 430 (6th Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). Although particular detail is not generally necessary, the factual allegations
“must be enough to raise a right to relief above the speculative level” such that the claim
“is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 555).

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B. Age discrimination
The ADEA prohibits an employer from discharging an individual “because of such
individual's age.”

29 U.S.C. § 623(a)(1). 1

Similarly, Section 4112.14 of the Ohio

Revised Code provides that no employer shall “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.” Ohio Rev. Code § 4112.14(A). Age
discrimination claims brought under the Ohio statute are “analyzed under the same
standards as federal claims brought under the [ADEA].” Wharton v. Gorman–Rupp Co.,
309 Fed.Appx. 990, 995 (6th Cir. 2009) (quoting Blizzard v. Marion Tech. Coll., 698
F.3d 275, 283 (6th Cir. 2012)).
Under the ADEA, a claim of age discrimination may be proven either by direct or
by circumstantial evidence. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th
Cir. 2012) (citing Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.
2003)). To prevail, “it is not sufficient for the plaintiff to show that age was a motivating
factor in the adverse action; rather, the ADEA's ‘because of’ language requires that a
plaintiff ‘prove by a preponderance of the evidence (which may be direct or
circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.’”
Scheick v. Tecumseh Pub. Sch., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)).
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The ADEA defines “employer” as “a person engaged in an industry affecting commerce
who has twenty or more employees for each working day in each of twenty or more calendar
weeks in the preceding calendar year . . . [and] any agent of such a person[.]” 29 U.S.C. §
630(a). The Sixth Circuit has explained that employees and supervisors are not included within
this definition, and therefore the ADEA does not permit employees and supervisors to be sued
in their individual capacities.” Ford v. Tennessee Human Rights Commission, No. 99–5415,
2000 WL 125903 at *1 (6th Cir. Jan. 28, 2000). Plaintiff sued Ron Sexton in his official and
personal capacities. (Doc. 1, ¶ 4). However, Defendants did not move to dismiss the claims
against Sexton on this basis.
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1. Direct evidence
“Direct evidence is evidence that proves the existence of a fact without requiring
any inferences.” Id. (quoting Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d
544, 548 (6th Cir. 2004)). In determining whether age was the “but for” cause of the
employment decision, “the inquiry includes both a predisposition to discrimination and
that the employer acted on that predisposition.” Id. In evaluating “statements allegedly
showing an employer's age bias,” the Court considers whether the statements were: (1)
made by a decision maker; (2) made in relation to the decision-making process; (3) not
isolated, vague, or ambiguous; and (4) made proximate in time to the discriminatory act.
Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002).
The Court concludes that Plaintiff has sufficiently plead a claim based on direct
evidence of discrimination. Three days after learning that his employment contract
would not be renewed, Plaintiff alleges that he overheard one of the members of the
Board, Bill Liermann, saying that not renewing Plaintiff’s contract would give the Board
“a chance to get some younger blood” in his role. (Doc. 1, ¶¶ 19-20). Therefore, to the
extent that Defendants argue that Plaintiff has failed to state a claim of age
discrimination based on direct evidence, Defendants’ Motion to Dismiss is DENIED.
2. Circumstantial evidence
ADEA claims based on circumstantial evidence are analyzed under the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973).

The plaintiff must first establish a prima facie case of

discrimination by showing: “(1) membership in a protected group; (2) qualification for
the job in question; (3) an adverse employment action; and (4) circumstances that

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support an inference of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The plaintiff can establish the fourth element
by showing that a substantially younger person replaced the plaintiff, or by showing that
similarly situated, non-protected employees were treated differently than the plaintiff.
Moore v. AMPAC, 645 F. App'x 495, 498 (6th Cir. 2016) (citing Mickey v. Zeidler Tool &
Die Co., 516 F.3d 516, 521-22 (6th Cir. 2008)).
Defendants argue that Plaintiff has failed to meet his burden of establishing a
prima facie case of age discrimination. However, the prima facie case under McDonnell
Douglas is an evidentiary standard, not a pleading requirement. Keys v. Humana, Inc.,
684 F.3d 605, 609 (6th Cir. 2012) (citing Swierkiewicz, 534 U.S. at 510). Accordingly,
“the ordinary rules for assessing the sufficiency of a complaint apply.” Pedreira v. Ky.
Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009). (quoting
Swierkiewicz, 534 U.S. at 511). Therefore, the court must look to whether Plaintiff has
“sufficiently pled ‘a claim to relief that is plausible on its face.’”

Id. at 728 (citing

Twombly, 550 U.S. at 570).
In Swierkiewicz, the Supreme Court held that the plaintiff “easily satisfie[d]” the
pleading requirements with a complaint that “detailed the events leading to his
termination, provided relevant dates, and included the ages . . . of at least some of the
relevant persons involved with his termination.”

534 U.S. at 514, 122 S.Ct. 992.

Defendants seem to argue that these facts are irrelevant because the adverse
employment action alleged in the Complaint was the result of Plaintiff’s decision to
tender his resignation.

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An adverse employment action is “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”

Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In
the Complaint, Plaintiff alleges that he was entitled to a two-year employment contract
by operation of law, but was only given nineteen months of employment. (Doc. 1, ¶ 16).
The decision to make the renewal of Plaintiff’s contract contingent upon his
resignation/retirement constitutes a significant change in employment status because
Plaintiff was denied pay and benefits for that five month period.

Moreover, “an

employee's resignation may constitute a constructive discharge when the employee
reasonably believed his termination to be imminent.” Harris v. Butler Cty., Ohio ex rel.
its Sheriff's Dep't, 344 F. App'x 195, 199 (6th Cir. 2009) (citing Ford v. Gen. Motors
Corp., 305 F.3d 545, 554 (6th Cir. 2002)).
Therefore, to the extent that Defendants argue that Plaintiff has failed to state a
claim of age discrimination based on circumstantial evidence, Defendants’ Motion to
Dismiss is DENIED.
B. Ohio Revised Code §3319.02
Plaintiff alleges he was entitled to a two-year contract under Ohio Revised Code
§ 3319.02 (D)(5) because Defendants failed to evaluate him pursuant to Ohio Revised
Code § 3319.02 (D)(2)(c).

Defendants move to dismiss this claim based on Ohio

Revised Code § 3319.02 (C), which provides: “If the superintendent so recommends,
the term of the contract of a person who has been employed by the district or service
center as an assistant superintendent, principal, assistant principal, or other

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administrator for three years or more may be one year . . .” However, based on the
allegations in the Complaint, Sexton did not recommend a contract for a one-year term.
Instead, Plaintiff alleges that Board member Kevin Snarr told Plaintiff that the Board
would agree to renew his contract for two years if he submitted a resignation/retirement
notice. (Doc. 1, ¶ 24). Therefore, Defendants are not entitled to dismissal based on
Ohio Revised Code § 3319.02 (C). 2
III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that Defendants’ Motion to

Dismiss. (Doc. 4) is DENIED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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Defendants also argue that this Court does not have pendant jurisdiction over this
claim. The Court rejects this argument. However, the Court questions whether this Court is the
proper forum for this claim. See State ex rel. Carna v. Teays Valley Local Sch. Dist. Bd. of
Edn., 131 Ohio St. 3d 478, 480, 967 N.E.2d 193, 195 (Ohio 2012) (explaining that the plaintiff
“brought suit in the Pickaway County Common Pleas Court requesting mandamus relief, which
we have held to be the appropriate device for a school administrator to use when seeking
reemployment, damages, or back pay for nonrenewal of an employment contract [under Ohio
Revised Code § 3319.02(D)].”) (citing State ex rel. Cassels v. Dayton City School Dist. Bd. of
Edn., 69 Ohio St.3d 217, 631 N.E.2d 150 (Ohio 1994)). Because Defendants did not raise that
issue, the Court will not address it here.
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