The opinion of the court was delivered by: Magistrate Judge Timothy S. Black
ORDER THAT: (1) DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (doc. 4) IS DENIED; and (2) PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT (doc. 10) IS GRANTED
This employment discrimination case is before the Court on Defendant's motion for judgment on the pleadings (doc. 4), and the parties' responsive memoranda (docs. 9, 13). Also before the Court is Plaintiff's motion for leave to amend complaint (doc. 10), and the parties' responsive memoranda (docs. 14, 15). The parties have consented to disposition by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Doc. 6.)
Plaintiff was employed by Ohio Casualty for 28 years, most recently as a software engineer. In 2003, Ohio Casualty gave Plaintiff a marginal performance evaluation and counseled her on how she needed to improve her performance. (Doc. 1 ¶ 10.) In May 2004, Plaintiff was placed on probation. Thereafter, on September 29, 2004, Plaintiff was terminated.
Plaintiff then filed a charged of discrimination with the EEOC on January 29, 2005, alleging age discrimination in employment against Defendant. (Id. at ¶ 4.) Subsequently, on November 18, 2005, Plaintiff filed the instant civil action alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq., and Ohio Rev. Code. Ann. §§ 4112.14 and .99, and wrongful discharge in violation of Ohio public policy. (Doc. 1.)
A. Defendant's Motion for Judgment on the Pleadings
Defendant's motion for judgment on the pleading is seeking to dismiss Counts II and III of Plaintiff's complaint. Defendant maintains that Plaintiff elected an administrative remedy, and, therefore, cannot pursue her claims under Ohio Rev. Code. Ann. §§ 4112.14 and .99. Defendant further asserts that Plaintiff's claim under Ohio Rev. Code. Ann. § 4112.99 fails to state a claim as a matter of law because Plaintiff did not file the claim with 180 days. Lastly, Defendant asserts that Plaintiff's claim of wrongful discharge in violation of Ohio public policy should be dismissed because Plaintiff has a statutory remedy. The undersigned disagrees, however, and for the reasons that follow, finds that Defendant's motion is not well-taken.
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Where, as here, a motion for judgment on the pleadings is based on the argument that the complaint fails to state claim upon which relief may be granted, the Rule 12(c) motion is judged under the same standard of review as a Rule 12(b)(6) motion. Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987).
Thus, the allegations of the complaint must be taken as true and construed liberally in favor of Plaintiff, the non-moving party. Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir.1999). The complaint is not to be dismissed "unless it appears beyond doubt that the [claimant] can prove no set of facts in support of his claim which would entitle him to relief." Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989). However, the complaint must set forth "more than the bare assertion of legal conclusions." Allard v. Weitzman (In Re DeLorean Motor Co.), 991F.2d 1236, 1240 (6th Cir.1993).
ii.. Plaintiff's State Law Age Discrimination Claims
The Ohio Revised Code provides four independent avenues through which an employee can pursue a claim of age discrimination. Spengler v. Worthington Cylinders, 438 F.Supp.2d 805, 807 -808 (S.D.Ohio 2006). "The four statutory provisions, all of which are found in Ohio Revised Code Chapter 4112, are as follows: (1) § 4112.02(N), which creates a civil action for violations of subsections (A) and (B) of that section; (2) § 4112.05, which provides for an administrative remedy, permitting the employee to bring a complaint before the Ohio Civil Rights Commission ("OCRC"); (3) § 4112.14(B), which permits a civil action for a violation of subsection (A) of that section; and (4) § 4112.99, which permits a civil action for a violation of any provision of Chapter 4112." Id.
In several provisions, Chapter 4112 makes each of the first three remedies expressly exclusive. Id. (citing Ohio Rev. Code §§ 4112.08, 4112.12, 4112.14). The fourth statutory remedy, § 4112.99, is neither expressly exclusive, nor expressly subject to an election of remedies bar. See Talbott ...