Cleveland Law Library Weblog

Age Discrimination Plaintiffs Recovering More Often Locally

The Plain Dealer reports that age discrimination plaintiffs are recovering more often locally. The latest award of $7 million for a 58 year old employee from Wachovia is less than half the $16 million dollars that Aurora native Tommy Morgan won last year against New York Life Insurance Co. Experts who have been studying the trend point to age sterotypes called ageism as the pattern in many of the cases for suits by employees in their 50's and 60's.

Post Office Can Schedule Jewish Worker on the Sabbath

The Plain Dealer reports that on Monday, the Sixth Circuit Court of Appeals issued a decision in Tepper v. Potter (Case No. 06-4182 on PACER), holding that a Jewish postal worker could not prove his allegations that he was discriminated against and that his employer failed to accomodate him. Mr. Tepper had sued in federal district court in Cleveland (Case No. 04-00343 on PACER), claiming claimed that his employer forced him to work on Saturdays, when he wanted to observe the Sabbath. Competing twists in the case were that the post office fully accomodated Tepper's religious wishes until it reduced staff at Tepper's station, the Union voted to end Tepper's scheduling accomodation (since its members were pulling more and more Saturday shifts to cover for Tepper), and the new union contract dropped the accomodation. Since there were still ways for Tepper to take Saturdays off (by using leave or switching with other staff), the court held that Tepper was not unfairly treated or disciplined.

Shaker Heights Settles Disability Suit

The Plain Dealer reports that the City of Shaker Heights has settled a federal case (Case No.1:06-cv-02568 on PACER), alleging that various City-owned public areas are inaccessible to people with disabilities.  The Complaint, which was filed on October 24, 2006, alleged violations of Title II of the Americans with Disabilities Act, 42 U.S.C. sec. 12181 et seq. and section 504 of the Rehabilitation Act. As part of the settlement, Shaker Heights will pay $50,000 in attorney fees to the plaintiffs' attorneys and make 53 renovations at various locations in the City, including City Hall, the Community Building, the Main Library, the Service Center, a fire station, Thornton Park, the Shaker Family Center, the Police Department/Municipal Court and city-owned property housing a Starbucks. The renovation projects run the gamet from mounting stickers to making restrooms accessible. The dockets available from PACER show that this suit is only one of many other suits that the plaintiffs, Bonnie Kramer and Disabled Patriots of America, have brought against various organizations, including RTA, Discount Drug Mart, Days Inn, and various malls, including Pavilion Mall, Crocker Park, Middleburg Towne Square, Parmatown, Legacy Village, Golden Gate and others.

Ohio Supreme Court Declines to Recognize Common Law Action for Age Discrimination

In Leininger v. Pioneer Natl. Latex, 2007-Ohio-4921, the Ohio Supreme Court recently held that there is no non-statutory cause of action for age discrimination. The Court held that Ohio's age discrimination statutes under R.C. Chapter 4112 provide a "full range of remedies" for employees who bring suit for wrongful termination based on age. Those remedies include a cease and desist order, reinstatement with back pay, restored seniority, fringe benefit credit, compensatory damages, punitive damages and attorney fees. Click here to read the Court's press release.

Woodmere Village in Civil Rights Controversies

The Village of Woodmere is now embroiled in two civil rights controversies involving both white and African American plaintiffs. In the first case (Case No. 1:07-cv-01541-DCN filed 5/25/07 on PACER), the United States claims that the Village of Woodmere unlawfully terminated two former white police officers named Amy Mengay and Tim Ellis because of their race in violation of 42 USC 2000e-5. Mengay and Ellis have both filed motions to intervene in the case. Newsnet5.com reports that the Village of Woodmere is an upscale shopping area which is predominantly run by African Americans under the authority of Mayor Yolanda Broadie. This case has some interesting twists. When this case goes to trial, the Village and its officers will have to overcome the fact that the EEOC has already concluded that the Village discriminated against the officers on the basis of race. Interestingly, however, the federal Court's Minutes of Proceedings from 8/23/07 indicate that Ellis already lost a state administrative appeal and that Mengay's administrative appeal is still pending. In fact, in the Ellis' case, the 8th District Court of Appeals docket (Trial Court No. CV-04-550569 and Appeal No. CA-05-086881) indicates that Ellis lost his administrative appeal in Cuyahoga County Common Pleas Court, unsuccessfully appealed to the Court of Appeals, and then unsuccessfully filed a petition for certiorari in the Ohio Supreme Court, which dismissed for lack of a substantial constitutional question. Mengay's appeal (Case No. CV-04-546985) is close to decision in Cuyahoga County Common Pleas court because both sides have filed proposed findings of fact and conclusions of law.

The second case (Case No. 1:07-cv-02517-JG, filed 8/20/097 on PACER) involves multiple claims of retaliation, constructive discharge, and equal protection brought by former black Police Chief LaMont Lockhart, who claims the Village retaliated against him when he provided information about Ellis and Mengay's allegations to the EEOC. Lockhart has asked that the Court to consolidate his action with the Government's case on behalf of Ellis and Mengay.

Family Can't Sue Over Student's Suicide

Akron federal District Judge Sara Lioi recently dismissed a civil rights lawsuit filed by the family of a University Akron student named Charles Plinton who comitted suicide after he was suspended by the University. Although Plinton was originally charged with drug trafficking following a local sting operation, he was later acquitted in criminal court. However, the University conducted a disciplinary hearing and suspended Plinton for a semester. After his death, Plinton's father sued both the University and the County in Akron federal court in the case captioned Plinton v. Summit County, et al., Case No. 5:06-cv-01872-SEL. District Judge Lioi subsequently dismissed the claims agains the University and recently held that the County was not responsible for what happened either. Click here to read the Court's decision granting summary judgment for Summit County. The Court's docket and orders can also be found on PACER.

OCRC May Increase Pregnant Workers' Rights

The Colmubus Dispatch reports that The Ohio Civil Rights Commission is conducting public hearings on a new proposal that would grant pregnant employees 12 weeks of leave as soon as they are hired. The proposed amendments definitely state that an employment policy or practice which provides less than 12 weeks will be "presumed to have a disparate impact on women and constitutes unlawful sex discrimination unless justified by business necessity." A summary of the proposed changes was issued with the public notice of the most recent hearing.  Click here to read the text of the proposed changes, and click here for a red-lined version.

1983 Action for Search of Wrong House Fails

In a per curiam opinion, the U.S. Supreme Court held that the plaintiffs' Fourth Amendment rights were not violated when the police obtained a valid warrant to search a house, but the suspects had moved out three months earlier, unbeknowst to the police.  The current occupants of the house were of a different race than the suspects.  The current occupants were forced to get out of bed naked, and stand there for a few minutes while the police secured the room.  The Ninth Circuit held that a reasonable jury could find that the plaintiffs' contstitutional rights were violated.  The U.S. Supreme Court reversed, stating, "When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated." Los Angeles County v. Retelle (May 21, 2007), U.S. Supreme Court Case No. 06–605. 

Post by Sue Altmeyer

Ohio's City Ordinances Prohibiting Discrimination Based on Sexual Preference

This post is thanks to a tip from Jack Sargent:

Brian DeWitt, writer for the Gay People's Chronicle, wrote a fantastic article listing the ordinances in various Ohio cities which outlaw discrimination based on sexual preference.  These ordinances are particularly important in Ohio, because there is no Ohio or Federal law explicitly prohibiting discrimination against homosexuals, bisexuals and/or transgender individuals.  (Current sex discrimination statutes could possibly be utilized in a case where discrimination occurred based on sexual preference, depending on the circumstances.) 

Some of the ordinances apply to all city residents, and aim to prevent discrimination in employment, public accomodations, credit or housing.  Other ordinances only prohibit employment discrimination against city workers.  The article also identifies ordinances disallowing discrimination in issuing parade permits.  Additionally, sexual preference discrimination laws from other states are examined.

The article is: Over Half the Nation Will be Covered by an Equality Law by Brian DeWitt, Gay People's Chronicle, May 11, 2007.  The article also appears at Google Groups - Transgender News.

Sixth Circuit Reverses Summary Judgment in Section 1983 Chokehold Case

The Sixth Circuit Court of Appeals reversed a summary judgment granted to police in a Section 1983 claim made by a decendant's estate, where the police used a chokehold on the decedant.  The evidence, when taken in a light most favorable to the plaintiff, could result in a determination that the use of the chokehold was not objectively reasonable in the circumstances.  The court noted a "force continuum" used by police departments, which indicates that chokeholds are used for more violent resistance.  According to the force continuum, pepper spray and other methods should be used before a chokehold is employed.  Additionally, the officers were aware that the arrestee had mental problems, and should have taken that into consideration.  Also, taking the facts in a light most favorable to the plaintiff, the arrestee did not present a danger to the police or anyone else.  Thus, the police had fair warning that using the chokehold was unconstitutional.   Griffith v. Coburn (Jan. 10, 2007), Sixth Cir. Case No. 05-2720.