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COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
TOM A. PETTAY
Case No. 20C VH-03-003267
Plaintiff,
Judge Jeffrey M. Brown
Vv.
ADTALEM GLOBAL EDUCATION
INC., et al
Defendants.
PLAINTIFF’S RENEWED MEMORANDUM IN OPPOSITION TO DEFENDANTS’
RENEWED MOTION TO DISMISS
I INTRODUCTION
Defendants previously filed a motion to dismiss, the granting of which was recently
reversed by the Court of Appeals. Rather than file an answer, as required by Civil Rule 12 (A)(2)
within 14 days of the reversal by the Court of Appeals, defendants filed another motion to dismiss.
Nowhere in the Civil Rules is there authority to allow the filing of a series of motions to dismiss,
once one is denied. Ifa party raises 5 separate grounds in a motion to dismiss, and the Court rules
on only one of them, does that mean that a new motion to dismiss can be filed on every other
ground that the Court failed to rule upon? Civil Rule 12 (G) requires all motions to be filed together
or they are waived. Defendants’ prior motions were presented to the Court previously and were
granted in part, which was reversed on appeal. Further motions under Rule 12 are inappropriate
as this stage of the case, which is now two years and 4 months after the case was filed. The proper
way to now test the sufficiency of the complaint is under Rule 56 for summary judgment, not with
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a series of additional motions to dismiss which would permit a party to endlessly file such motions
and never file an answer. Despite this simple proposition that multiple successive motions should
not be allowed, plaintiff is now forced to respond to the newly filed multiple additional grounds
for their now denied motion to dismiss, following a continued pattern of retaliatory litigation.
IL. LAW & ARGUMENT
The dismissal of a claim pursuant to Civ. R. 12(B)(6) is appropriate only where it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d
753 (1975); York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, 1064
(1991). A court must presume all factual allegations contained in the complaint to be true and
make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40
Ohio St.3d 190, 192, 532 N.E.2d 753, 756 (1988). Further, a court is confined to the allegations
contained in the complaint and cannot consider evidence outside of that complaint. McGlone v.
Grimshaw, 86 Ohio App.3d 279, 285, 620 N.E.2d 935, 939 (4th Dist.1993).
Ohio is a notice-pleading state. “Ohio law does not ordinarily require a plaintiff to plead
operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416, 2002-
Ohio-2480, 929. A plaintiff is only required to make “a short and plain statement of the claim
showing that the party is entitled to relief.” Civ. R. 8(A)(1); see also Beretta U.S.A. Corp., 2002-
Ohio-2480, 9/29. “Notice pleading under Civ.R. 8(A) and 8(E) requires that a claim concisely set
forth only those operative facts sufficient to give fair notice of the nature of the action.” Ford v.
Brooks, \0th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¥ 13 (internal quotations omitted)
“Nevertheless, to constitute fair notice, the complaint must allege sufficient underlying facts that
relate to and support the alleged claim; the complaint may not simply state legal conclusions.”
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Montgomery v. Ohio State Univ., 10th Dist. No. 11AP-1024, 2012-Ohio-5489, 20; quoting
Allstate Ins. Co. v. Electrolux Home Prods., Inc., 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90,
49. “[T]he basic facts of the incident, transaction, or occurrence that gives rise to a clam for relief
must be stated.” Oxford Sys. Integration, Inc. v. Smith-Boughan Mechanical Servs., 2nd Dist. No.
04CA16, 159 Ohio App.3d 533, 2005-Ohio-210, 824 N.E.2d 586, { 10.
Again, ee [m]Jore than bare assertions of legal conclusions are required to satisfy the notice
pleading standard.’” Carasalina, LLC v. Smith Phillips & Assocs., 10th Dist. No. 13AP-1027,
2014-Ohio-2423, iJ14, quoting Howard v. US. Dist. Court for Southern Dist. of Ohio, S.D.Ohio
No. 2:10-CV-757, 2010 U.S. Dist. LEXIS 133191 (Dec. 16, 2010). “In practice, a complaint must
contain either direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory.” /d. (Citations omitted). “Indeed, when construing the
complaint in favor of the non-moving party, ‘a court is not bound to accept as true a legal
oe
conclusion couched as a factual allegation. Id., quoting Ferron v. Zoomego, Inc., 276 Fed. Appx.
473 (C.A.6 2008), see also Haas v. Stryker, 6th Dist. No. WM-12-004, 2013-Ohio-2476,10
(“Only factual allegations are presumed to be true and only claims supported by factual allegations
can avoid dismissal.”).
Defendants’ renewed motion attempts to supplant the notice-pleading standard with a
summary judgment standard. In so doing, Defendants completely ignore the factual allegations of
the Complaint. After having the basis for previously granting their prior motion to dismiss be
reversed on appeal, they have had their ruling by the trial court on the motions they originally filed
and renewing it at this stage smacks of renewed retaliation. The reality is that recovery of
deposition costs has been barred in Ohio since the decision of the Ohio Supreme Court in
Williamson v. Ameritech Corp., 81 Ohio St.3d 342, 691 N.E.2d 288 (1998), and to correct the 10"
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District’s straying from that controlling authority in its decision in Vossman v. AirNet Systems,
Inc., 2017 WL 2241562 (10" Dist. 2017), plaintiffs counsel was again required to get the Supreme
Court to correct the 10" District, which it again did on appeal in Vossman v. AirNet Systems, Inc.,
159 Ohio St.3d 529, 152 N.E.3d 232 (2020). Deposition costs have not been recoverable in Ohio
since 1998 and for defendants to seek to recover them in this case was frivolous and retaliatory.
A. RETALIATION
Defendants attack the sufficiency of Pettay’s claim of retaliation on three grounds: (1) an
alleged lack of factual support of an adverse employment action, (2) an alleged lack of factual
support for the individual defendants’ liability as aiders and abettors, and (3) the timeliness of
Pettay’s complaint.
1. Adverse Employment Action
a. Former Employees are Protected by Ohio’s Antidiscrimination Laws
Defendants first attack Pettay’s claim on the grounds that no adverse employment action
occurred because he has not been employed by DeVry since July 9, 2016. This argument has been
soundly rejected not only by our Court of Appeals in this case, but by both the EEOC and federal
courts nation-wide in the context of Title VII claims, as well as by the Ohio Supreme Court. In
Robinson y. Shell Oil Co., 519 U.S. 337, 345-46, 117 S.Ct. 843, 848, 136 L.Ed.2d 808 (1997) the
Supreme Court of the United States addressed the exact issue at play in the case sub judice.
According to the EEOC, exclusion of former employees from the protection of §
704(a) would undermine the effectiveness of Title VII by allowing the threat of
postemployment retaliation to deter victims of discrimination from complaining to
the EEOC, and would provide a perverse incentive for employers to fire employees
who might bring Title VII claims.
Those arguments carry persuasive force given their coherence and their consistency
with a primary purpose of antiretaliation provisions: Maintaining unfettered access
to statutory remedial mechanisms. The EEOC quite persuasively maintains that it
would be destructive of this purpose of the antiretaliation provision for an employer
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to be able to retaliate with impunity against an entire class of acts under Title VII—
for example, complaints regarding discriminatory termination. We agree with these
contentions and find that they support the inclusive interpretation of “employees”
in § 704(a) that is already suggested by the broader context of Title VIL
Robinson, 519 U.S. at 346, 117 S.Ct. at 848 (internal citations omitted). The Ohio Supreme Court
adopted this standard in Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879
N.E.2d 174, J 13 fn. 2 (2007). Specifically, the Ohio Supreme Court stated:
Although Greer—Burger left Temesi's employ in 1997, former employees are
covered under the antidiscrimination statutes. Robinson v. Shell Oil Co. (1997), 519
US. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808. The fact that R.C. 4112.02 uses the
term “person,” which has a broader definition than “employee,” provides further
evidence that Greer-Burger could still be covered under the statute. Likewise, the
adverse action need not be employment-related, so the filing of a lawsuit or a
counterclaim can constitute an adverse employment action in circumstances such
as those in this case. Burlington N. & Santa Fe Ry. Co. v. White (2006), 548 U.S.
53, 126 S.Ct. 2405, 2412-2415, 165 L.Ed.2d 345
Although this Court, in its prior ruling on the original motion to dismiss cited to Greer-
Burger v. Temesi at page 9 of its ruling as to another issue, it ignored its principal ruling in its
decision, which would have avoided having the decision granting the motion to dismiss reversed
in the 10" District. Defendants again allege in their renewed motion the same ground rejected in
this case by the Court of Appeals, that the retaliation was not employment related. They also again
raise the issue of frivolous conduct which was decided in their favor by this Court and not appealed.
b. Other basis for the motion to dismiss
Defendants’ next argument is that although they lost on appeal on the only ground on
which the trial court ruled, that they should get another chance to argue the alternate grounds in
their motion. They had a chance to do that both as to their original motion and in the court of
appeals, as alternate grounds to support the trial court’s decision, but failed in that effort. They
now argue that the litigation privilege and the statute of limitations bar this retaliation suit. Both
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issues were briefed in the Court of Appeals and that court did also not swallow what defendants
were selling.
L Absolute Immunity Privilege
Defendants patently misapply the absolute immunity privilege. “Absolute Immunity
Privilege” is a misnomer insofar as this particular privilege confers a /imited immunity with regard
to statements made in connection with representation by an attorney in court proceedings. Surace
v. Wuliger, 25 Ohio St.3d 229, 233, 495 N.E.2d 939, 942-43 (1986). Traditionally, this privilege
has been limited to claims of defamation, although plaintiff will admit that there have been some
extremely limited broadening of this privilege. As applied to retaliatory legal action by employers,
courts have mostly refused to apply a litigation privilege. Steffes v. Stepan Co., 144 F.3d 1070 (7""
Cir. 1998) (declining to apply Illinois’s absolute litigation privilege to immunize defendants
because it could “interfere with the policies underlying the anti-retaliation provisions” of federal
statutory schemes); Kimes v. Stone, 84 F.3d 1121, 1127 (9" Cir. 1996) (finding that California’s
litigation privilege did not bar plaintiffs suit under 42 U.S.C. §1983); and Rosania v. Taco Bell of
America, Inc., 303 F.Supp.2d 878, 884-88 (N.D. Ohio 2004) (applying the rulings of district courts
applying Sixth Circuit law to support a holding that the plain language of the federal statute
providing for retaliation claims overrides any litigation privilege). In Rosania the employer
counterclaimed in an FMLA case for conversion and unjust enrichment as to mileage
reimbursement paid to employees and the court allowed the plaintiff to amend the complaint to
plead a retaliation claim. It relied on other decisions within the 6" Circuit finding that retaliation
claims were adverse actions that were not limited to those that are employment related and not
barred by the litigation privilege, citing to EEOC v. Outback Steakhouse of Florida, Inc., 75 F.
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Supp.2d 756 (N.D. Ohio 1999), Gliatta v. Tectum, Inc., 211 F.Supp.2d 992 (S.D. Ohio 2002), and
Gill v. Rinker Materials Corp., No. 3:02-CV-13, 2003 WL 749911 (E.D. Tenn. 2003).
The retaliation claim here is expressly based on the Ohio retaliation statute, RC 4112.02(1),
which is to be construed consistently with federal rulings on the similar retaliation protections in
Title VII, 42 U.S.C. § 2000-e-3(a). Allman v. Walmart, Inc., 967 F.3d 566 (6" Cir. 2020);
Mengelkamp v. Lake Metro. Housing Authority, 549 F. App’x 323, 329-30 (6" Cir. 2013). Ohio
state courts have repeatedly held that federal law provides the applicable analysis for reviewing
retaliation claims brought under RC 4112.02(1). Baker v. Buschman Co., 127 Ohio App.3d 51,
713 N.E.2d 487, 491 (12" Dist. 1998), Wright v. Petroleum Helicopters, Inc., No. 71168, 1997
WL 578939 (8" Dist. 1997); Chandler v. Empire Chemical, Inc., 99 Ohio App.3d 396, 402, 650
N.E. 2d 950, 954 (9 Dist. 1994); see Plumbers & Steamfitters Joint Apprenticeship Comm. v.
Ohio Civil Rights Comm'n, 66 Ohio St.2d 192, 421 N.E.2d 128, 131 (1981). No litigation privilege
bars these claims.
2. Timeliness of Plaintiff's Complaint
Defendants erroneously claim that Plaintiff’ s complaint is untimely. In coming to this false
conclusion, Defendants cite to R.C. 4112.02(L) and Theodore v. Bridgestone Americas, LLC, No.
5:15-CV-00698, 2015 WL 4664212, at *7 (N.D. Ohio Aug. 6, 2015), falsely summarizing Judge
Gwinn’s decision to state that “all claims that are based on a violation of 4112.02 are subject to
the 180-day statute of limitations.” Defs. Mot. at 11 (emphasis added). This assertion by
defendants not only illustrates the lack of merit in their argument, it also illustrates how frivolous
their overall conduct is in litigating Pettay’s claims. R.C. 4112.02(L) states in its entirety:
An aggrieved individual may enforce the individual's rights relative to
discrimination on the basis of age as provided for in this section by instituting a
civil action, within one hundred eighty days after the alleged unlawful
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discriminatory practice occurred, in any court with jurisdiction for any legal or
equitable relief that will effectuate the individual's rights.
Thus, this statute limits a party to bringing age discrimination claims within 180 days, but not a//
claims of violations of R.C. 4122.02. Moreover, the actual holding of 7heodore is equally damning
to Defendants’ argument: “Thus, all claims of age discrimination brought under Section 4112.02,
or that are based on a violation of 4112.02, are subject to the 180 day statute of limitations.”
Theodore, 2015 WL 4664212, *7 (emphasis added). Neither pieces of Defendants’ purported
authority relate to the statute of limitations of retaliation claims. That is because retaliation claims,
under Ohio law, are subject to a six-year statute of limitations.
The Supreme Court of Ohio has construed that claims (other than age) brought against an
employer under R.C. 4112.99 are subject to the six-year statute of limitations prescribed in R.C
2305.07. Cosgrove v. Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281, 1994-Ohio-295,
638 N.E.2d 991 (1994) (“R.C. 4112.99 is a remedial statute, and is thus subject to R.C. 2305.07's
six-year statute of limitations.”). In coming to this conclusion, the Supreme Court reasoned that
“unless a cause of action is based on a provision in R.C. Chapter 4112 that authorizes independent
civil actions and sets forth its own specific statute of limitations, R.C. 4112.99 applies and the
cause of action is subject to R.C. 2305.07's six-year statute of limitations.” /d. at 292. Pettay’s
claim in this matter is based on R.C. 4112.02(1), which has no individual statute of limitations and
is subject to the remedies set forth in R.C. 4112.99 and 2305.07. The recently enacted two year
statute of limitations for discrimination claims in Ohio is not retroactive.
Pettay’s complaint was filed on May 19, 2020. The age discrimination claims were
resolved in a previous case and it was not until the trial court awarded costs to defendants on
January 16, 2020 that the separate retaliation claim arose. Plaintiff filed a separate lawsuit
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claiming retaliation on May 19, 2020, which was 124 days later. Not until the Court granted
defendant’s motion for costs was the retaliation a reality to plaintiff.
The retaliation case was filed under RC 4112.02(I) and RC 4112.99, and aider and abettor
liability was alleged under RC 4112.02(J) and 4112.99. There was no claim made under the age
discrimination statute, RC 4112.02(A), which was the basis for his lawsuit filed on September 30,
2016 arising out of his being terminated in a reduction in force on July 9, 2016. The original age
discrimination complaint had no claim for retaliation in it, since the retaliation did not occur until
4 years later. Since the retaliation took place 4 years after the age discrimination it was long after
plaintiff was no longer an employee.
In Cosgrove v. Williamsburg of Cincinnati Management Co., Inc., 70 Ohio St.3d 281, 638
N.E.2d 281 (1994), our court held that RC 4112.99 is a remedial statute and subject to the 6 year
statute of limitations of RC 2305.07. Except as to age discrimination cases that are governed by
the specific 180 day statute of limitations in RC 4112.02(N), all cases brought under RC 4112.99
have a 6 year statute of limitations. Retaliation cases are governed by the six year statute of
limitations. Greenleaf v. DTG Operations, Inc., No. 2:09-CV-192, 2011 WL 883022 at *6 (S.D
Ohio 2011), Gainor v. Worthington City Schools, No. 2:11-CV-561, 2013 WL 6587869 (S.D. Ohio
2013). These statutes are to be liberally construed to effectuate their remedial purposes. RC
4112.08
Since the cause of action for retaliation was completely unrelated to the age discrimination
claim 4 years earlier, the statute of limitations does not begin to run until the act of retaliation was
consummated in January of 2000, well within both the 6 year and the 180 day statute of limitations.
Given the applicable six-year statute of limitations, Pettay could file a complaint for
retaliatory actions dating back to May 20, 2014. This period certainly covers the actions
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Defendants took in October of 2019, and is not limited to actions happening at the time of his
initial inclusion in a RIF in 2016.
iti Pleading Aiding and Abetting
Finally, defendants allege, as they did previously in this Court in their first Motion to
Dismiss, that plaintiffs fail to adequately allege aiding and abetting of retaliation under RC
4112.02(J), while acknowledging that the only basis for dismissal is that the retaliation claim was
not properly supported. Since the Court of Appeals has upheld the retaliation claim, the aiding
and abetting allegations are properly made. The same is true for their assertion that the litigation
privilege bars an aiding and abetting claim. Without any discovery having been conducted in this
now 28-month old case, you can see why motions to dismiss and serial motions to dismiss are filed
to inordinately delay the proceedings to the point that no one can remember anything of what
motivated their filing of their frivolous motion for costs. In fact defendants have now filed 3
separate motions to dismiss in the litigation with this former employee. Graham and Wiggam
were the decision makers on the fate of Pettay at DeVry and were the only ones who precipitated
this entire series of events. Graham was plaintiffs direct supervisor, Wiggam was Graham’s
supervisor, and Field was the supervisor of Wiggam, as alleged in paragraph’s 3, 4, and 5 of the
complaint. The direct line of supervision controlled the actions that DeVry and then Adtalem took
in dealing with the charges of discrimination and then retaliation raised by Pettay
The well pleaded allegations of the complaint are contained in paragraphs 1, 2, 3, 4, 5, 6,
7, 8, and 9 and support the pleading standards of Civil Rule 8 requiring a short and plain statement
showing that Pettay is entitled to relief. Pettay has met this requirement and put Defendants on
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notice as to all aspects of his claim for retaliation. By these serial motions Defendants are
continuing their pattern of retaliation by litigation against one who dared to allege discrimination.
Til. CONCLUSION
For these reasons the renewed motions to dismiss should be denied.
Respectfully submitted,
/s/ Russell A. Kelm
Russell A. Kelm (0011034)
LAW OFFICES OF RUSSELL A. KELM
300 West Spring Street, Unit 1801
Columbus, Ohio 43215
(614) 223-9562
kelm@kelmlawfirm.com
Attorneys for Plaintiff
PROOF OF SERVICE
The undersigned hereby certifies that a copy of the foregoing, PLAINTIFF’S
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS, was served
by this Court’s electronic filing system and email on:
Drew C. Piersall,
ZASHIN& RICH CO., L.P.A.,
17 South High Street
Suite 900
Columbus, OH 43215
(614) 224-4411
dcp@zrlaw.com
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and
Jennifer Riley (pro hac vice)
SEYFARTH SHAW LLP
233 South Wacker Drive
Suite 8000
Chicago, IL 60606
(312) 460-5000
jriley@seyfarth.com
Attorneys for Defendants
this 26th day of September, 2022.
/s/ Russell A. Kelm
Attorney for Plaintiff
Preview
goeeoeeoenrnenereneees ke FEAKHA-COoUntyY- GOhio-Glerk-of Gourts-of the-Gontmon-Rleas~2022-Sep-26-6:3:4-RM-20GV00326- GO97 - R37 COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO TOM A. PETTAY Case No. 20C VH-03-003267 Plaintiff, Judge Jeffrey M. Brown Vv. ADTALEM GLOBAL EDUCATION INC., et al Defendants. PLAINTIFF’S RENEWED MEMORANDUM IN OPPOSITION TO DEFENDANTS’ RENEWED MOTION TO DISMISS I INTRODUCTION Defendants previously filed a motion to dismiss, the granting of which was recently reversed by the Court of Appeals. Rather than file an answer, as required by Civil Rule 12 (A)(2) within 14 days of the reversal by the Court of Appeals, defendants filed another motion to dismiss. Nowhere in the Civil Rules is there authority to allow the filing of a series of motions to dismiss, once one is denied. Ifa party raises 5 separate grounds in a motion to dismiss, and the Court rules on only one of them, does that mean that a new motion to dismiss can be filed on every other ground that the Court failed to rule upon? Civil Rule 12 (G) requires all motions to be filed together or they are waived. Defendants’ prior motions were presented to the Court previously and were granted in part, which was reversed on appeal. Further motions under Rule 12 are inappropriate as this stage of the case, which is now two years and 4 months after the case was filed. The proper way to now test the sufficiency of the complaint is under Rule 56 for summary judgment, not with goeeoeeorernenerenes FEAKHA-County-Ghio-Glerk-of ee Gourts-of the-Gontnon-Rleas~2022-Sep-26-6534-RM-20GV00326%~ GO97 - R38 a series of additional motions to dismiss which would permit a party to endlessly file such motions and never file an answer. Despite this simple proposition that multiple successive motions should not be allowed, plaintiff is now forced to respond to the newly filed multiple additional grounds for their now denied motion to dismiss, following a continued pattern of retaliatory litigation. IL. LAW & ARGUMENT The dismissal of a claim pursuant to Civ. R. 12(B)(6) is appropriate only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975); York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, 1064 (1991). A court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756 (1988). Further, a court is confined to the allegations contained in the complaint and cannot consider evidence outside of that complaint. McGlone v. Grimshaw, 86 Ohio App.3d 279, 285, 620 N.E.2d 935, 939 (4th Dist.1993). Ohio is a notice-pleading state. “Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416, 2002- Ohio-2480, 929. A plaintiff is only required to make “a short and plain statement of the claim showing that the party is entitled to relief.” Civ. R. 8(A)(1); see also Beretta U.S.A. Corp., 2002- Ohio-2480, 9/29. “Notice pleading under Civ.R. 8(A) and 8(E) requires that a claim concisely set forth only those operative facts sufficient to give fair notice of the nature of the action.” Ford v. Brooks, \0th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¥ 13 (internal quotations omitted) “Nevertheless, to constitute fair notice, the complaint must allege sufficient underlying facts that relate to and support the alleged claim; the complaint may not simply state legal conclusions.” goer FEAKHA-County-GOhio-Glerk-of Gourts-of the- Gontnnen-Rieas-~-2022-Sep-26-6534-RM-20GV00326%— GO97 - R39 Montgomery v. Ohio State Univ., 10th Dist. No. 11AP-1024, 2012-Ohio-5489, 20; quoting Allstate Ins. Co. v. Electrolux Home Prods., Inc., 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90, 49. “[T]he basic facts of the incident, transaction, or occurrence that gives rise to a clam for relief must be stated.” Oxford Sys. Integration, Inc. v. Smith-Boughan Mechanical Servs., 2nd Dist. No. 04CA16, 159 Ohio App.3d 533, 2005-Ohio-210, 824 N.E.2d 586, { 10. Again, ee [m]Jore than bare assertions of legal conclusions are required to satisfy the notice pleading standard.’” Carasalina, LLC v. Smith Phillips & Assocs., 10th Dist. No. 13AP-1027, 2014-Ohio-2423, iJ14, quoting Howard v. US. Dist. Court for Southern Dist. of Ohio, S.D.Ohio No. 2:10-CV-757, 2010 U.S. Dist. LEXIS 133191 (Dec. 16, 2010). “In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” /d. (Citations omitted). “Indeed, when construing the complaint in favor of the non-moving party, ‘a court is not bound to accept as true a legal oe conclusion couched as a factual allegation. Id., quoting Ferron v. Zoomego, Inc., 276 Fed. Appx. 473 (C.A.6 2008), see also Haas v. Stryker, 6th Dist. No. WM-12-004, 2013-Ohio-2476,10 (“Only factual allegations are presumed to be true and only claims supported by factual allegations can avoid dismissal.”). Defendants’ renewed motion attempts to supplant the notice-pleading standard with a summary judgment standard. In so doing, Defendants completely ignore the factual allegations of the Complaint. After having the basis for previously granting their prior motion to dismiss be reversed on appeal, they have had their ruling by the trial court on the motions they originally filed and renewing it at this stage smacks of renewed retaliation. The reality is that recovery of deposition costs has been barred in Ohio since the decision of the Ohio Supreme Court in Williamson v. Ameritech Corp., 81 Ohio St.3d 342, 691 N.E.2d 288 (1998), and to correct the 10" goeeoeeornrneneenees FAAKHA-GCounty-Ghio-Glerk-of ke Gourts-of the-Gonnmon-Rleas~2022-Sep-26-6534-RM-20GV00326%~ GO97 - R40 District’s straying from that controlling authority in its decision in Vossman v. AirNet Systems, Inc., 2017 WL 2241562 (10" Dist. 2017), plaintiffs counsel was again required to get the Supreme Court to correct the 10" District, which it again did on appeal in Vossman v. AirNet Systems, Inc., 159 Ohio St.3d 529, 152 N.E.3d 232 (2020). Deposition costs have not been recoverable in Ohio since 1998 and for defendants to seek to recover them in this case was frivolous and retaliatory. A. RETALIATION Defendants attack the sufficiency of Pettay’s claim of retaliation on three grounds: (1) an alleged lack of factual support of an adverse employment action, (2) an alleged lack of factual support for the individual defendants’ liability as aiders and abettors, and (3) the timeliness of Pettay’s complaint. 1. Adverse Employment Action a. Former Employees are Protected by Ohio’s Antidiscrimination Laws Defendants first attack Pettay’s claim on the grounds that no adverse employment action occurred because he has not been employed by DeVry since July 9, 2016. This argument has been soundly rejected not only by our Court of Appeals in this case, but by both the EEOC and federal courts nation-wide in the context of Title VII claims, as well as by the Ohio Supreme Court. In Robinson y. Shell Oil Co., 519 U.S. 337, 345-46, 117 S.Ct. 843, 848, 136 L.Ed.2d 808 (1997) the Supreme Court of the United States addressed the exact issue at play in the case sub judice. According to the EEOC, exclusion of former employees from the protection of § 704(a) would undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims. Those arguments carry persuasive force given their coherence and their consistency with a primary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms. The EEOC quite persuasively maintains that it would be destructive of this purpose of the antiretaliation provision for an employer goeeoeornrneneenes ke FAAKHA-CountyY- GOhie-Glerk-of Gourts-of the-Gontmon-Rleas~2022-Sep-26-6534-RM-20G6V.00326%~ GO97 - R41 to be able to retaliate with impunity against an entire class of acts under Title VII— for example, complaints regarding discriminatory termination. We agree with these contentions and find that they support the inclusive interpretation of “employees” in § 704(a) that is already suggested by the broader context of Title VIL Robinson, 519 U.S. at 346, 117 S.Ct. at 848 (internal citations omitted). The Ohio Supreme Court adopted this standard in Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, J 13 fn. 2 (2007). Specifically, the Ohio Supreme Court stated: Although Greer—Burger left Temesi's employ in 1997, former employees are covered under the antidiscrimination statutes. Robinson v. Shell Oil Co. (1997), 519 US. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808. The fact that R.C. 4112.02 uses the term “person,” which has a broader definition than “employee,” provides further evidence that Greer-Burger could still be covered under the statute. Likewise, the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case. Burlington N. & Santa Fe Ry. Co. v. White (2006), 548 U.S. 53, 126 S.Ct. 2405, 2412-2415, 165 L.Ed.2d 345 Although this Court, in its prior ruling on the original motion to dismiss cited to Greer- Burger v. Temesi at page 9 of its ruling as to another issue, it ignored its principal ruling in its decision, which would have avoided having the decision granting the motion to dismiss reversed in the 10" District. Defendants again allege in their renewed motion the same ground rejected in this case by the Court of Appeals, that the retaliation was not employment related. They also again raise the issue of frivolous conduct which was decided in their favor by this Court and not appealed. b. Other basis for the motion to dismiss Defendants’ next argument is that although they lost on appeal on the only ground on which the trial court ruled, that they should get another chance to argue the alternate grounds in their motion. They had a chance to do that both as to their original motion and in the court of appeals, as alternate grounds to support the trial court’s decision, but failed in that effort. They now argue that the litigation privilege and the statute of limitations bar this retaliation suit. Both gooeoeeorrneneenes FAAKHA-County-Ohio-Glerk-of ke Gourts-of the-Gontmon-Rleas~2022-Sep-26-6534-RM-20GV00326%~ GO97 - R42 issues were briefed in the Court of Appeals and that court did also not swallow what defendants were selling. L Absolute Immunity Privilege Defendants patently misapply the absolute immunity privilege. “Absolute Immunity Privilege” is a misnomer insofar as this particular privilege confers a /imited immunity with regard to statements made in connection with representation by an attorney in court proceedings. Surace v. Wuliger, 25 Ohio St.3d 229, 233, 495 N.E.2d 939, 942-43 (1986). Traditionally, this privilege has been limited to claims of defamation, although plaintiff will admit that there have been some extremely limited broadening of this privilege. As applied to retaliatory legal action by employers, courts have mostly refused to apply a litigation privilege. Steffes v. Stepan Co., 144 F.3d 1070 (7"" Cir. 1998) (declining to apply Illinois’s absolute litigation privilege to immunize defendants because it could “interfere with the policies underlying the anti-retaliation provisions” of federal statutory schemes); Kimes v. Stone, 84 F.3d 1121, 1127 (9" Cir. 1996) (finding that California’s litigation privilege did not bar plaintiffs suit under 42 U.S.C. §1983); and Rosania v. Taco Bell of America, Inc., 303 F.Supp.2d 878, 884-88 (N.D. Ohio 2004) (applying the rulings of district courts applying Sixth Circuit law to support a holding that the plain language of the federal statute providing for retaliation claims overrides any litigation privilege). In Rosania the employer counterclaimed in an FMLA case for conversion and unjust enrichment as to mileage reimbursement paid to employees and the court allowed the plaintiff to amend the complaint to plead a retaliation claim. It relied on other decisions within the 6" Circuit finding that retaliation claims were adverse actions that were not limited to those that are employment related and not barred by the litigation privilege, citing to EEOC v. Outback Steakhouse of Florida, Inc., 75 F. goers FAAKHA-CountyY-Ghio-Glerk-of Gourts-of the-Gontnen-Rieas-~-2022-Sep-26-6534-RM-20GV00326%— GO97 - R43 Supp.2d 756 (N.D. Ohio 1999), Gliatta v. Tectum, Inc., 211 F.Supp.2d 992 (S.D. Ohio 2002), and Gill v. Rinker Materials Corp., No. 3:02-CV-13, 2003 WL 749911 (E.D. Tenn. 2003). The retaliation claim here is expressly based on the Ohio retaliation statute, RC 4112.02(1), which is to be construed consistently with federal rulings on the similar retaliation protections in Title VII, 42 U.S.C. § 2000-e-3(a). Allman v. Walmart, Inc., 967 F.3d 566 (6" Cir. 2020); Mengelkamp v. Lake Metro. Housing Authority, 549 F. App’x 323, 329-30 (6" Cir. 2013). Ohio state courts have repeatedly held that federal law provides the applicable analysis for reviewing retaliation claims brought under RC 4112.02(1). Baker v. Buschman Co., 127 Ohio App.3d 51, 713 N.E.2d 487, 491 (12" Dist. 1998), Wright v. Petroleum Helicopters, Inc., No. 71168, 1997 WL 578939 (8" Dist. 1997); Chandler v. Empire Chemical, Inc., 99 Ohio App.3d 396, 402, 650 N.E. 2d 950, 954 (9 Dist. 1994); see Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St.2d 192, 421 N.E.2d 128, 131 (1981). No litigation privilege bars these claims. 2. Timeliness of Plaintiff's Complaint Defendants erroneously claim that Plaintiff’ s complaint is untimely. In coming to this false conclusion, Defendants cite to R.C. 4112.02(L) and Theodore v. Bridgestone Americas, LLC, No. 5:15-CV-00698, 2015 WL 4664212, at *7 (N.D. Ohio Aug. 6, 2015), falsely summarizing Judge Gwinn’s decision to state that “all claims that are based on a violation of 4112.02 are subject to the 180-day statute of limitations.” Defs. Mot. at 11 (emphasis added). This assertion by defendants not only illustrates the lack of merit in their argument, it also illustrates how frivolous their overall conduct is in litigating Pettay’s claims. R.C. 4112.02(L) states in its entirety: An aggrieved individual may enforce the individual's rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one hundred eighty days after the alleged unlawful gooeoeoreneneenees ke FAAKHA-CountyY- Ohio-Glerk-of Gourts-of the-Gonnnon-Rleas~2022-Sep-26-6534-RM-20G6V.00326%~ GO97 - R44 discriminatory practice occurred, in any court with jurisdiction for any legal or equitable relief that will effectuate the individual's rights. Thus, this statute limits a party to bringing age discrimination claims within 180 days, but not a// claims of violations of R.C. 4122.02. Moreover, the actual holding of 7heodore is equally damning to Defendants’ argument: “Thus, all claims of age discrimination brought under Section 4112.02, or that are based on a violation of 4112.02, are subject to the 180 day statute of limitations.” Theodore, 2015 WL 4664212, *7 (emphasis added). Neither pieces of Defendants’ purported authority relate to the statute of limitations of retaliation claims. That is because retaliation claims, under Ohio law, are subject to a six-year statute of limitations. The Supreme Court of Ohio has construed that claims (other than age) brought against an employer under R.C. 4112.99 are subject to the six-year statute of limitations prescribed in R.C 2305.07. Cosgrove v. Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281, 1994-Ohio-295, 638 N.E.2d 991 (1994) (“R.C. 4112.99 is a remedial statute, and is thus subject to R.C. 2305.07's six-year statute of limitations.”). In coming to this conclusion, the Supreme Court reasoned that “unless a cause of action is based on a provision in R.C. Chapter 4112 that authorizes independent civil actions and sets forth its own specific statute of limitations, R.C. 4112.99 applies and the cause of action is subject to R.C. 2305.07's six-year statute of limitations.” /d. at 292. Pettay’s claim in this matter is based on R.C. 4112.02(1), which has no individual statute of limitations and is subject to the remedies set forth in R.C. 4112.99 and 2305.07. The recently enacted two year statute of limitations for discrimination claims in Ohio is not retroactive. Pettay’s complaint was filed on May 19, 2020. The age discrimination claims were resolved in a previous case and it was not until the trial court awarded costs to defendants on January 16, 2020 that the separate retaliation claim arose. Plaintiff filed a separate lawsuit goeeoeeerrneneene FAAKHA-County-GOhio-Glerk-of ee Gourts-of the-Gontmon-Rleas~2022-Sep-26-6534-RM-20G6V00326%~ GO97 - R45 claiming retaliation on May 19, 2020, which was 124 days later. Not until the Court granted defendant’s motion for costs was the retaliation a reality to plaintiff. The retaliation case was filed under RC 4112.02(I) and RC 4112.99, and aider and abettor liability was alleged under RC 4112.02(J) and 4112.99. There was no claim made under the age discrimination statute, RC 4112.02(A), which was the basis for his lawsuit filed on September 30, 2016 arising out of his being terminated in a reduction in force on July 9, 2016. The original age discrimination complaint had no claim for retaliation in it, since the retaliation did not occur until 4 years later. Since the retaliation took place 4 years after the age discrimination it was long after plaintiff was no longer an employee. In Cosgrove v. Williamsburg of Cincinnati Management Co., Inc., 70 Ohio St.3d 281, 638 N.E.2d 281 (1994), our court held that RC 4112.99 is a remedial statute and subject to the 6 year statute of limitations of RC 2305.07. Except as to age discrimination cases that are governed by the specific 180 day statute of limitations in RC 4112.02(N), all cases brought under RC 4112.99 have a 6 year statute of limitations. Retaliation cases are governed by the six year statute of limitations. Greenleaf v. DTG Operations, Inc., No. 2:09-CV-192, 2011 WL 883022 at *6 (S.D Ohio 2011), Gainor v. Worthington City Schools, No. 2:11-CV-561, 2013 WL 6587869 (S.D. Ohio 2013). These statutes are to be liberally construed to effectuate their remedial purposes. RC 4112.08 Since the cause of action for retaliation was completely unrelated to the age discrimination claim 4 years earlier, the statute of limitations does not begin to run until the act of retaliation was consummated in January of 2000, well within both the 6 year and the 180 day statute of limitations. Given the applicable six-year statute of limitations, Pettay could file a complaint for retaliatory actions dating back to May 20, 2014. This period certainly covers the actions gooeoeeorrneneenees FAAKHA-COoUntY-GOhio-Glerk-of ee Gourts-of the-Gontmon-Rlieas~2022-Sep-26-6534-RM-20GV00326%~ GO97 - R46 Defendants took in October of 2019, and is not limited to actions happening at the time of his initial inclusion in a RIF in 2016. iti Pleading Aiding and Abetting Finally, defendants allege, as they did previously in this Court in their first Motion to Dismiss, that plaintiffs fail to adequately allege aiding and abetting of retaliation under RC 4112.02(J), while acknowledging that the only basis for dismissal is that the retaliation claim was not properly supported. Since the Court of Appeals has upheld the retaliation claim, the aiding and abetting allegations are properly made. The same is true for their assertion that the litigation privilege bars an aiding and abetting claim. Without any discovery having been conducted in this now 28-month old case, you can see why motions to dismiss and serial motions to dismiss are filed to inordinately delay the proceedings to the point that no one can remember anything of what motivated their filing of their frivolous motion for costs. In fact defendants have now filed 3 separate motions to dismiss in the litigation with this former employee. Graham and Wiggam were the decision makers on the fate of Pettay at DeVry and were the only ones who precipitated this entire series of events. Graham was plaintiffs direct supervisor, Wiggam was Graham’s supervisor, and Field was the supervisor of Wiggam, as alleged in paragraph’s 3, 4, and 5 of the complaint. The direct line of supervision controlled the actions that DeVry and then Adtalem took in dealing with the charges of discrimination and then retaliation raised by Pettay The well pleaded allegations of the complaint are contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 and support the pleading standards of Civil Rule 8 requiring a short and plain statement showing that Pettay is entitled to relief. Pettay has met this requirement and put Defendants on goer RAAKHA-County-GOhio-Glerk-of Gourts-of the-Gontnen-Rleas--2022-Sep-26-6534-RM-20GV00326%— GO97 - R47 notice as to all aspects of his claim for retaliation. By these serial motions Defendants are continuing their pattern of retaliation by litigation against one who dared to allege discrimination. Til. CONCLUSION For these reasons the renewed motions to dismiss should be denied. Respectfully submitted, /s/ Russell A. Kelm Russell A. Kelm (0011034) LAW OFFICES OF RUSSELL A. KELM 300 West Spring Street, Unit 1801 Columbus, Ohio 43215 (614) 223-9562 kelm@kelmlawfirm.com Attorneys for Plaintiff PROOF OF SERVICE The undersigned hereby certifies that a copy of the foregoing, PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS, was served by this Court’s electronic filing system and email on: Drew C. Piersall, ZASHIN& RICH CO., L.P.A., 17 South High Street Suite 900 Columbus, OH 43215 (614) 224-4411 dcp@zrlaw.com goer FAAKHA-County-Ghio-Glerk-of Gourts-of the-Gontnen-Rleas--2022-Sep-26-6534-RM-20GV00326%— GO97 - R48 and Jennifer Riley (pro hac vice) SEYFARTH SHAW LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460-5000 jriley@seyfarth.com Attorneys for Defendants this 26th day of September, 2022. /s/ Russell A. Kelm Attorney for Plaintiff