Taaffe v. Drake

Julianne Taaffe, et al., Plaintiffs, v. Michael V. Drake, et al., Defendants.

Case No. 2:15-CV-2870

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 29, 2016

Magistrate Judge Kemp

OPINION AND ORDER

Plaintiffs Julianne Taaffe and Kathryn Moon, both former staff members of the Ohio State University who taught in the English as a Second Language program, filed this complaint alleging that they and other older workers in that program were the subject of age discrimination, and that after both Plaintiffs complained about their treatment, their positions were eliminated and they were forced into retirement. They brought discrimination and retaliation claims against five University officials, including OSU president Dr. Michael Drake; OSU provost Joseph E. Steinmetz; Cheryl Achterberg, a college dean; Sandra Stroot, interim chair of the Department of Teaching and Learning; and Robert Eckhart, Executive Director of the English as a Second Language programs - all officials who "hold the authority to effect prospective relief for the Plaintiffs regarding all employment matters." (Complaint, ¶6). This case has been referred to the Magistrate Judge for full disposition by consent of the parties. See Doc. 13.

On February 4, 2016, all defendants moved for judgment on the pleadings. Defendants assert generally that "this court is not the proper forum for private statutory age discrimination claims under the ... ADEA ... against these individual defendants." Doc. 18, at 2. They then argue that the defendants, as individuals, are not "employers" within the meaning of the ADEA, that this case does not fall within the Eleventh Amendment exception for actions for injunctive relief against state officials as explained in Ex parte Young, 209 U.S. 123 (1908), that the factual allegations are insufficient as to each Defendant, and that neither Defendant Steinmetz nor Defendant Eckhart has the power to provide any injunctive relief which the Court might order. The motion has been fully briefed, including a sur-reply filed by Plaintiffs. For the following reasons, the motion for judgment on the pleadings will be denied.

I. Legal Standard

A motion for judgment on the pleadings filed under Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and is evaluated under the same standard as a motion to dismiss. Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979). In ruling upon such motion, the Court must accept as true all well- pleaded material allegations of the pleadings of the opposing party, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment. Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973). The same rules which apply to judging the sufficiency of the pleadings apply to a Rule 12(c) motion as to a motion filed under Rule 12(b)(6); that is, the Court must separate factual allegations from legal conclusions, and may consider as true only those factual allegations which meet a threshold test for plausibility. See, e.g., Tucker v. Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing, inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). It is with these standards in mind that the motion for judgment on the pleadings must be decided.

II. Factual Background

Because the case is before the Court by way of a motion for judgment on the pleadings, the only relevant facts are those contained in the complaint. The Court will summarize them briefly.

The two Plaintiffs are older individuals, in their late fifties or early sixties. Each was an instructor in OSU's English as a Second Language program, and each began working there in 1983. Each was a well-regarded professional.

In 2009, OSU hired a new director of the ESL programs. He served in that position for four years. During his tenure, he expressed disfavor for older employees. University officials did not discipline him for doing so. In 2013, that director was replaced by Defendant Eckhart, who was less qualified for the position than older employees within the ESL program. Mr. Eckhart "was openly hostile to older workers" (Complaint, ¶21) and took steps to eliminate them while promoting younger replacements, many of whom were less qualified. He specifically targeted Plaintiff Taaffe, giving her an unmerited low evaluation. She complained about that treatment to Defendant Achterberg and filed a charge of discrimination with the EEOC. Plaintiff Moon made a similar complaint, as did others, and OSU commissioned an investigation of these complaints. The investigation was superficial and did not substantiate the complaints made. Plaintiffs asked Defendant Drake, the University President, to look into the matter, but received no response.

Less than a week after the investigation was completed, Plaintiffs' positions were eliminated, and they were "reclassified as lecturers with limited contractual appointments." (Complaint, ¶37). The result was that Plaintiffs faced a likely pay cut and had no assurance of future employment.Additionally, they faced the prospect of a substantial loss of retirement benefits and vacation pay if they did not retire quickly. Each retired, a result which Defendant Eckhart had predicted as a result of the changes he instituted. Their jobs were then reclassified and posted, but once Plaintiffs and other older workers applied for those positions, the posting was removed. As relief for these actions, Plaintiffs seek reinstatement and other ancillary relief.

III. Discussion

Defendants advance four separate reasons why either the complaint, or certain defendants, should be dismissed. The Court will discuss these arguments in turn, grouping some of them together because they raise related issues.

A. Relief Available against Individual Defendants

The first issue raised is whether the Court can grant relief under the ADEA against individual defendants. Defendants assert that, under the statute, only an "employer" can be held liable, and that the employer in this case is the University and not any of its officials. They concede that, in some circumstances, agents of an employer can count as the employer, but assert that this concept is inapplicable to governmental agencies like OSU. Plaintiffs respond that every federal court which has considered the question, including the Court of Appeals for the Sixth Circuit (albeit in an unpublished decision), has held that it is appropriate for a public employee to seek injunctive relief against individual state officials under the ADEA.

The Court begins with the key case upon which Defendants rely, Michigan Corrections Organization v. Michigan Dept. of Corrections, 774 F.3d 895 (6th Cir. 2014). That was an FLSA case brought by certain corrections officers and their union against the Michigan Department of Corrections and its director seeking overtime pay and declaratory relief. The district courtdismissed any claim for damages as barred by the Eleventh Amendment, and further concluded that no claim for declaratory relief could be asserted against the Department's director. The Court of Appeals, affirming, concluded that because the FLSA does not create a private right of action for injunctive relief (such relief can be granted only in actions brought by the Department of Labor), and because any claim for money damages was barred by the Eleventh Amendment, the plaintiffs simply had no private right of action that could form the basis for a declaratory judgment. It noted that the Declaratory Judgment Act, 28 U.S.C. §2201, does not create a cause of action, but can be invoked only when there is "a preexisting right enforceable in federal court." Id. at 902. Similarly, the Court of Appeals held that "Ex parte Young provides a path around sovereign immunity if the plaintiff already has a cause of action from somewhere else" - which, in the case of a suit brought under the FLSA, the plaintiffs did not. Id. at 905.

Clearly, there are differences between the FLSA and the ADEA. The latter statute provides for a private cause of action for injunctive relief. See 29 U.S.C. §626(c)(1)("Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter..."). That difference, according to Defendants, is immaterial because, under 29 U.S.C. §630(b), agents of a State, of a political subdivision of a State, or of a State agency or instrumentality do not meet the statutory definition of an "employer." Thus, there is no private right of action against officials like the Defendants under the ADEA, and nothing to support relief under a statute like the Declaratory Judgment Act, or, more importantly, under an Ex parte Young theory.

Since Plaintiffs cite a number of cases permitting actionsfor injunctive relief against state officials in cases brought under the ADEA, it is instructive to see how they have dealt with this issue. The Court begins with Meekison v. Voinovich, 67 Fed. Appx. 900 (6th Cir. June 18, 2003), which affirmed a decision on this issue rendered by Judge Marbley of this Court. In his opinion, Judge Marbley recognized that individual defendants could not be held liable under the ADEA, but he concluded that an injunctive action could proceed against individual defendants. Meekison v. Voinovich, 17 F.Supp.2d 725 (S.D. Ohio 1998). The Court of Appeals agreed, noting that "private individuals may sue for injunctive relief to enforce the standards of the ADA under Ex parte Young ... [and] [t]he same is true under the ADEA." Meekison, 67 Fed. Appx. at 901. It does not appear, however, that either court in that case was presented with the precise argument which Defendants make here. The same is true for decisions such as Smith v. Grady, 960 F.Supp.2d 735, 756 (S.D. Ohio 2013), which, without much discussion, allowed claims for injunctive relief under the ADEA to proceed against...