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Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267
OF134 - W7
COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
TOM A. PETTAY
908 QUAINT COURT No.
REYNOLDSBURG, OH 43068 Type H
Plaintiff,
COMPLAINT
-Vs-
JURY DEMAND
ENDORSED HEREON
ADTALEM GLOBAL EDUCATION, INC
fka DEVRY UNIVERSITY, INC.
fka DEVRY EDUCATION GROUP, INC.
1350 ALUM CREEK DRIVE
COLUMBUS, OH 43209-2705
and
COGSWELL EDUCATION, LLC
c/o NATIONAL REGISTERED
AGENTS, INC.
1209 ORANGE STREET
WILMINGTON, DE 19801
and
GALEN H. GRAHAM
176 EAST GAY STREET
COLUMBUS, OH 43215
and
MARILYN K. WIGGAM
6059 ST. BOSWELL COURT
DUBLIN, OH 43017
and
DARRYL W. FIELD
6301 JOSHUA ROAD
PORT WASHINGTON, PA 19034
Defendants.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267
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For his complaint against Adtalem Global Education, Inc. fka DeVry University, Inc.,
also fka DeVry Education Group, Inc., (hereinafter “DeVry”), Cogswell Education LLC
(hereinafter “Cogswell”), Galen H. Graham (hereinafter “Graham”), Marilyn K. Wiggam
(hereinafter “Wiggam”) and Darryl W. Field (hereinafter “Field’), plaintiff Tom G. Pettay
(hereinafter “Pettay”) alleges as follows
PARTIES
1 Plaintiff, Tom G. Pettay, had been employed by DeVry for 18 years, was a full
time professor with good performance reviews, when he was terminated in a reduction in force
on June 15, 2016, effective on July 9, 2016 at age 64, and his classes were taken over by younger
less qualified personnel. In the RIF including Pettay, 94% of those who lost their jobs were over
age 40.
2 Defendant DeVry when operated by Adtalem was a publicly traded company
(Stock Symbol ATGE) owning 9 educational institutions, with 11,300 employees providing post-
secondary education on 56 operating campuses and over the internet. DeVry had 46,0000
students with revenues of $1.2 billion a year. In 2019 DeVry was divested by Adtalem and is
now owned by Cogswell Education, LLC, who purchased it at no cost. Cogswell is controlled
by Bradley Palmer and his Connecticut based Palm Ventures.
3 Defendant Graham was the DeVry Assistant Dean of Liberal Arts & Sciences and
was the direct supervisor of plaintiff.
4 Defendant Wiggam was the DeVry Group Dean of Academic Excellence in its
Midwest Groups and was the supervisor of Graham.
5 Defendant Field was the Metro President of DeVry and supervisor of Wiggam.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267
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6 Defendants DeVry, Cogswell, Graham, Wiggam and Field are employers within
the meaning of RC 4112.01(A)(2) and defendants Cogswell, Graham, Wiggam, and Field aided
and abetted DeVry in committing retaliation against Plaintiff within the meaning of RC
4112.02(J) and RC 4112.02().
FACTUAL ALLEGATIONS
7 Plaintiff filed an action for age discrimination on September 30, 2016, and on
October 7, 2019 summary judgment was granted against him and is currently on appeal.
8 Following the granting of summary judgment counsel for plaintiff discussed with
counsel for DeVry the issue of costs being requested to be awarded and advised that plaintiff's
counsel always opposed the recovery of the costs of depositions and would do so to the Ohio
Supreme Court level if necessary, that the issue was presently before the Ohio Supreme Court
awaiting decision in another case, and that it made no sense to spend $20,000 to $40,000 in legal
fees to recover $4,000 in costs unless the true motive was retaliation.
9 Defendants proceeded with their motion for costs on October 16, 2019, requiring
plaintiff to file a thorough review of the law on this issue in a 15 page memorandum in
opposition.
10. At the time of filing their motion DeVry was a billion dollar educational system
and plaintiff, having formerly been a full professor at DeVry could only find work as an hourly
distribution warehouse worker for Amazon earning $17 an hour.
11. On January 16, 2020 the trial court, ignoring plaintiffs argument, granted the
motion for costs and awarded $4,004.39 in deposition transcript costs against plaintiff.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267
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12. An appeal was filed by plaintiff to the Court of Appeals on the cost issue, which
was now separate from an appeal on the merits, and on March 10, 2020 a 40-page brief on the
cost issue was filed by plaintiff in the Court of Appeals.
13. During this entire period, defendants were made aware that the same issue had
been briefed and was awaiting a decision by the Ohio Supreme Court since April of 2019 in
another case.
14. On March 12, 2020 the Ohio Supreme Court ruled in another case that deposition
transcript costs were not recoverable as costs in Ohio in Vossman v. AirNet Systems, Inc. (March
12, 2020), 2020 Ohio 872. The Ohio Supreme Court had previously disallowed such costs in
1998 in Williamson v. Ameritech Corp, (1998), 81 Ohio St.3d 342, 691 N.E.2d 288.
15. In response to the Supreme Court ruling defendants filed 3 motions in the trial and
appellate courts, none of which had any sound basis in Ohio law, seeking to avoid a Court of
Appeals reversal on this issue in the pending case.
16. Plaintiff was required at considerable expense to research and reply to these
frivolous motions.
17. There is no business reason why a party would spend tens of thousands of dollars
to recover $4,000 in deposition transcript costs from an hourly warehouse worker, other than to
retaliate by litigation against a former employee who had the audacity to file a discrimination
case, and to try to make an example of him to discourage other prospective plaintiffs from
asserting their rights, which could come at a considerable cost to them if they did so.
18. Defendants’ action in filing frivolous motions and expending significantly
exorbitant time and expense to recover nominal deposition costs is a materially adverse action
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267
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against plaintiff and serves to deter other individuals from engaging in similar protected
activities.
19. Defendants have filed several frivolous motions in the appellate court where an
appeal of the cost issue is pending and has filed notices in the trial court seeking to avoid a ruling
on the merits of plaintiff's appeal, none of which are justified or warranted under existing Ohio
law, rather than filing a simple brief conceding error. These filings were done to merely harass
and maliciously injure plaintiff and to cause a needless increase in the cost of litigation within
the meaning of RC 2323.51(A)(2)(a)(@i) and (ii).
COUNT ONE
20. Plaintiff realleges herein paragraphs 1 through 19 above.
21. Defendants’ actions constitute retaliation in violation of RC 4112.02(1) and
4112.99, and defendants Cogswell, Graham, Wiggam, and Field aided and abetted retaliation in
violation of 4112.02(J) and 4112.99, for which plaintiff seeks compensatory and punitive
damages, including damages for emotional distress, plus interest, costs and reasonable attorney’s
fees from defendants in the sum of $850,000.
COUNT TWO
22. Plaintiff realleges herein paragraphs 1 through 21 above.
23. Defendants actions constitute frivolous conduct within the meaning of RC
2323.51 for which plaintiff seeks to recover from defendants and their attorneys, after hearing,
their reasonable attorney’s fees and costs incurred in opposing defendants frivolous actions, plus
costs and interest as allowed by law in the sum of $40,000.00.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267
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WHEREFORE, plaintiff demands judgment against defendants for a sum in excess of
$25,000 plus interest, costs, and attorney’s fees.
/s/ Russell A. Kelm
Russell A. Kelm (0011034)
Jan M. King (0093434)
LAW OFFICES OF RUSSELL A. KELM
37 W. Broad Street, Suite 860
Columbus, Ohio 43215
Tel: (614) 246-1000 | Fax: (614) 246-8110
kelm@kelmlawfirm.com
king@kelmlawfirm.com
Attorney for Plaintiff
JURY DEMAND
Plaintiff demands trial by jury of all issues
/s/ Russell A. Kelm
Attorney for Plaintiff
TO THE CLERK
Please issue Summons and serve it with the Complaint by certified U.S. Mail, return-
receipt requested, upon defendants at the addresses set forth in the caption.
/s/ Russell A. Kelm
Attorney for Plaintiff
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267 OF134 - W7 COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO TOM A. PETTAY 908 QUAINT COURT No. REYNOLDSBURG, OH 43068 Type H Plaintiff, COMPLAINT -Vs- JURY DEMAND ENDORSED HEREON ADTALEM GLOBAL EDUCATION, INC fka DEVRY UNIVERSITY, INC. fka DEVRY EDUCATION GROUP, INC. 1350 ALUM CREEK DRIVE COLUMBUS, OH 43209-2705 and COGSWELL EDUCATION, LLC c/o NATIONAL REGISTERED AGENTS, INC. 1209 ORANGE STREET WILMINGTON, DE 19801 and GALEN H. GRAHAM 176 EAST GAY STREET COLUMBUS, OH 43215 and MARILYN K. WIGGAM 6059 ST. BOSWELL COURT DUBLIN, OH 43017 and DARRYL W. FIELD 6301 JOSHUA ROAD PORT WASHINGTON, PA 19034 Defendants. Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267 OF134 - W7 For his complaint against Adtalem Global Education, Inc. fka DeVry University, Inc., also fka DeVry Education Group, Inc., (hereinafter “DeVry”), Cogswell Education LLC (hereinafter “Cogswell”), Galen H. Graham (hereinafter “Graham”), Marilyn K. Wiggam (hereinafter “Wiggam”) and Darryl W. Field (hereinafter “Field’), plaintiff Tom G. Pettay (hereinafter “Pettay”) alleges as follows PARTIES 1 Plaintiff, Tom G. Pettay, had been employed by DeVry for 18 years, was a full time professor with good performance reviews, when he was terminated in a reduction in force on June 15, 2016, effective on July 9, 2016 at age 64, and his classes were taken over by younger less qualified personnel. In the RIF including Pettay, 94% of those who lost their jobs were over age 40. 2 Defendant DeVry when operated by Adtalem was a publicly traded company (Stock Symbol ATGE) owning 9 educational institutions, with 11,300 employees providing post- secondary education on 56 operating campuses and over the internet. DeVry had 46,0000 students with revenues of $1.2 billion a year. In 2019 DeVry was divested by Adtalem and is now owned by Cogswell Education, LLC, who purchased it at no cost. Cogswell is controlled by Bradley Palmer and his Connecticut based Palm Ventures. 3 Defendant Graham was the DeVry Assistant Dean of Liberal Arts & Sciences and was the direct supervisor of plaintiff. 4 Defendant Wiggam was the DeVry Group Dean of Academic Excellence in its Midwest Groups and was the supervisor of Graham. 5 Defendant Field was the Metro President of DeVry and supervisor of Wiggam. Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267 OF134 - W7 6 Defendants DeVry, Cogswell, Graham, Wiggam and Field are employers within the meaning of RC 4112.01(A)(2) and defendants Cogswell, Graham, Wiggam, and Field aided and abetted DeVry in committing retaliation against Plaintiff within the meaning of RC 4112.02(J) and RC 4112.02(). FACTUAL ALLEGATIONS 7 Plaintiff filed an action for age discrimination on September 30, 2016, and on October 7, 2019 summary judgment was granted against him and is currently on appeal. 8 Following the granting of summary judgment counsel for plaintiff discussed with counsel for DeVry the issue of costs being requested to be awarded and advised that plaintiff's counsel always opposed the recovery of the costs of depositions and would do so to the Ohio Supreme Court level if necessary, that the issue was presently before the Ohio Supreme Court awaiting decision in another case, and that it made no sense to spend $20,000 to $40,000 in legal fees to recover $4,000 in costs unless the true motive was retaliation. 9 Defendants proceeded with their motion for costs on October 16, 2019, requiring plaintiff to file a thorough review of the law on this issue in a 15 page memorandum in opposition. 10. At the time of filing their motion DeVry was a billion dollar educational system and plaintiff, having formerly been a full professor at DeVry could only find work as an hourly distribution warehouse worker for Amazon earning $17 an hour. 11. On January 16, 2020 the trial court, ignoring plaintiffs argument, granted the motion for costs and awarded $4,004.39 in deposition transcript costs against plaintiff. Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267 OF134 - W7 12. An appeal was filed by plaintiff to the Court of Appeals on the cost issue, which was now separate from an appeal on the merits, and on March 10, 2020 a 40-page brief on the cost issue was filed by plaintiff in the Court of Appeals. 13. During this entire period, defendants were made aware that the same issue had been briefed and was awaiting a decision by the Ohio Supreme Court since April of 2019 in another case. 14. On March 12, 2020 the Ohio Supreme Court ruled in another case that deposition transcript costs were not recoverable as costs in Ohio in Vossman v. AirNet Systems, Inc. (March 12, 2020), 2020 Ohio 872. The Ohio Supreme Court had previously disallowed such costs in 1998 in Williamson v. Ameritech Corp, (1998), 81 Ohio St.3d 342, 691 N.E.2d 288. 15. In response to the Supreme Court ruling defendants filed 3 motions in the trial and appellate courts, none of which had any sound basis in Ohio law, seeking to avoid a Court of Appeals reversal on this issue in the pending case. 16. Plaintiff was required at considerable expense to research and reply to these frivolous motions. 17. There is no business reason why a party would spend tens of thousands of dollars to recover $4,000 in deposition transcript costs from an hourly warehouse worker, other than to retaliate by litigation against a former employee who had the audacity to file a discrimination case, and to try to make an example of him to discourage other prospective plaintiffs from asserting their rights, which could come at a considerable cost to them if they did so. 18. Defendants’ action in filing frivolous motions and expending significantly exorbitant time and expense to recover nominal deposition costs is a materially adverse action Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267 OF134 - W7 against plaintiff and serves to deter other individuals from engaging in similar protected activities. 19. Defendants have filed several frivolous motions in the appellate court where an appeal of the cost issue is pending and has filed notices in the trial court seeking to avoid a ruling on the merits of plaintiff's appeal, none of which are justified or warranted under existing Ohio law, rather than filing a simple brief conceding error. These filings were done to merely harass and maliciously injure plaintiff and to cause a needless increase in the cost of litigation within the meaning of RC 2323.51(A)(2)(a)(@i) and (ii). COUNT ONE 20. Plaintiff realleges herein paragraphs 1 through 19 above. 21. Defendants’ actions constitute retaliation in violation of RC 4112.02(1) and 4112.99, and defendants Cogswell, Graham, Wiggam, and Field aided and abetted retaliation in violation of 4112.02(J) and 4112.99, for which plaintiff seeks compensatory and punitive damages, including damages for emotional distress, plus interest, costs and reasonable attorney’s fees from defendants in the sum of $850,000. COUNT TWO 22. Plaintiff realleges herein paragraphs 1 through 21 above. 23. Defendants actions constitute frivolous conduct within the meaning of RC 2323.51 for which plaintiff seeks to recover from defendants and their attorneys, after hearing, their reasonable attorney’s fees and costs incurred in opposing defendants frivolous actions, plus costs and interest as allowed by law in the sum of $40,000.00. Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 May 19 11:47 AM-20CV003267 OF134 - W8 WHEREFORE, plaintiff demands judgment against defendants for a sum in excess of $25,000 plus interest, costs, and attorney’s fees. /s/ Russell A. Kelm Russell A. Kelm (0011034) Jan M. King (0093434) LAW OFFICES OF RUSSELL A. KELM 37 W. Broad Street, Suite 860 Columbus, Ohio 43215 Tel: (614) 246-1000 | Fax: (614) 246-8110 kelm@kelmlawfirm.com king@kelmlawfirm.com Attorney for Plaintiff JURY DEMAND Plaintiff demands trial by jury of all issues /s/ Russell A. Kelm Attorney for Plaintiff TO THE CLERK Please issue Summons and serve it with the Complaint by certified U.S. Mail, return- receipt requested, upon defendants at the addresses set forth in the caption. /s/ Russell A. Kelm Attorney for Plaintiff