Pursuant to Sixth Circuit Rule 206
DAMON J. KEITH, Circuit Judge.
Plaintiff-appellant Kevin W. Ziegler brought suit in state court against his former employer, defendant-appellee IBP Hog Market, Inc. ("IBP"), alleging age discrimination in violation of Ohio law. IBP removed the case to federal court, then moved for judgment on the pleadings. The district court granted IBP's motion, and Ziegler appeals. For the reasons that follow, we
On August 26, 1999, Ziegler filed his complaint in the Hancock County, Ohio Court of Common Pleas alleging three counts of age discrimination in violation of Ohio Rev.Code Ann. ("O.R.C.") §§ 4112.02(N), 4112.14, and 4112.99. Ziegler alleged that he was employed by IBP from September 1, 1993, until his employment was terminated on January 31, 1998. IBP removed the case on the basis of complete diversity of citizenship to the United States District Court for the Northern District of Ohio.
On October 28, 1999, IBP moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and 12(b)(6), arguing that Ziegler's claims were untimely under the applicable statute of limitations and that his claims were barred because he failed to select one remedy as required by O.R.C. Chapter 4112. On November 23, 1999, Ziegler moved for leave to file an amended complaint, seeking to retain only the § 4112.14 claim. On December 03, 1999, Ziegler moved for leave to file a second amended complaint, seeking to add a new claim, common law wrongful discharge for age discrimination in violation of public policy.
On January 10, 2000, the district court entered judgment granting IBP's motion for judgment on the pleadings, concluding that Ziegler's claims were untimely under the applicable statute of limitations. The court deemed Ziegler's motion for leave to file a second amended complaint to supercede his motion for leave to file an amended complaint, and denied the motion concluding that the public policy wrongful discharge claim was similarly untimely and amendment was therefore futile. Ziegler filed a timely notice of appeal from the district court's order on February 03, 2000.
A. JUDGMENT ON THE PLEADINGS
1. Standard of Review
The standard of review applicable to a motion for judgment on the pleadings under Fed.R.Civ.Pro. 12(c) is the same de
We review the district court's interpretation and application of state law de novo. See Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Ferro Corp. v. Garrison Indust., Inc., 142 F.3d 926, 931 (6th Cir.1998).
In the court below, IBP asserted that it was entitled to judgment on the pleadings as Ziegler's claims were barred: (1) because Ziegler failed to elect a single remedy as required under Ohio law; and (2) by the applicable period of limitations. The district court agreed that IBP's claims were time barred. It did not, however, address the issue of whether Ziegler's failure to elect a single remedy entitled IBP to judgment on the pleadings. The parties dispute both of these issues on appeal.
a. Election of Remedies
IBP argues that Ziegler's complaint must be dismissed because he was barred from simultaneously bring claims under O.R.C. §§ 4112.02(N), 4112.14 and 4112.99. Ziegler contends that, because he moved for leave to file an amend complaint so as to dismiss his 4112.02 and 4112.99 claims in good faith and in a timely fashion, IBP was not entitled to judgment on the pleadings based on his failure to elect a single remedy. He suggests that the assertion of multiple Chapter 4112 claims simultaneously is not a fatal defect. We agree.
The avenues of relief provided by Ohio statutory law for age-based employment discrimination are exclusive and, once an action is instituted thereunder, a plaintiff is barred from bringing an action under a different provision. See Morris v. Kaiser Engineers, Inc., 14 Ohio St.3d 45, 471 N.E.2d 471, 473 (1984). Section 4112.02(N) provides that "[a] person who files a civil action under this division is barred, with respect to the practices complained of, from instituting a civil action under section 4112.14 of the Revised Code...." Likewise, § 4112.14(B) provides that "any person instituting an civil action under this section is barred, with respect to the practices complained of, from instituting a civil action under division (N) of section 4112.02 of the Revised Code...." While § 4112.99 has no similar express election of remedies language, there is some indication that Ohio courts will impute to it such an exclusivity requirement. See Balent v. National Revenue Corp., 93 Ohio App.3d 419, 638 N.E.2d 1064, 1067 (1994) (imputing to § 4112.99 an exclusivity requirement); Giambrone v. Spalding & Evenflo Co., 79 Ohio App.3d 308, 607 N.E.2d 106, 108 (1992) (same).
IBP interprets the exclusivity language of §§ 4112.02(N) and 4112.14(B) as requiring dismissal of a complaint which asserts more than one Chapter 4112 claim. IBP argues that since Ziegler asserted a § 4112.02 claim, then the § 4112.14 and § 4112.99 claims must be dismissed, and, because he asserted a § 4112.14 claim, the § 4112.02 and § 4112.99 claims must be dismissed. This would be a harsh rule indeed.
In Giambrone v. Spalding & Evenflo Co., an Ohio appellate court rejected the defendant's contention that the plaintiff's age discrimination claims were
We find no merit in IBP's assertion that Ziegler's claims are barred because he asserted multiple age discrimination claims simultaneously. IBP can point to no cases in support of its contention. Moreover, its argument finds no support in the language of the provisions, which bar successive actions after a single remedy has been elected. Our decision is guided by the directive of O.R.C. § 4112.08 that Chapter 4112 "be construed liberally for the accomplishment of its purposes...." While Ziegler may not assert multiple Chapter 4112 claims, he may elect a single remedy by motion to amend. Accordingly, we reject IBP's assertion that it is entitled to judgment on the pleadings solely due to Ziegler's simultaneous assertion of more than one Chapter 4112 remedy.
b. Statute of Limitations
The question of whether the district court erred in granting IBP's motion for judgment on the pleadings turns on the limitations period applicable to Ziegler's claim brought pursuant to § 4112.14.
The Ohio statutory scheme prohibiting age discrimination has a rather complicated history, and a brief overview would be helpful. Four sections of the O.R.C. provide remedies for age-based employment discrimination. Section 4112.02 is a general anti-discrimination statute that provides a private cause of action for age discrimination.
While § 4112.02(N) includes a statute of limitations, § 4112.14 does not. In 1984, the Ohio Supreme Court, in Morris v. Kaiser Engineers, Inc., 14 Ohio St.3d 45, 471 N.E.2d 471, 474 (1984), was confronted with the issue of whether the express limitations period of § 4112.02(N) applied to claims brought pursuant to § 4101.17 (§ 4112.14 prior to recodification).
The Morris holding, that § 4101.17 is subject to a six-year limitations period, was never overturned expressly, but was theoretically called into question by a later Ohio Supreme Court decision, Bellian v. Bicron Corp., 69 Ohio St.3d 517, 634 N.E.2d 608, 610 (1994). In Bellian, the Ohio Supreme Court held that "any discrimination claim, premised on a violation described in O.R.C. Chapter 4112, must comply with the one-hundred-eighty-day statute of limitations period set forth in former O.R.C. 4112.02(N)." 634 N.E.2d at 610. At the time Bellian was decided, there were only two statutes in Chapter 4112 providing a civil cause of action for age discrimination: § 4112.02(N) and § 4112.99. See id.
The Bellian court was required to determine the applicable period of limitations for an age discrimination claim brought pursuant to § 4112.99,
In 1995, shortly after Bellian was decided, the Ohio General Assembly recodified hundreds of statutory provisions as part of a lengthy bill entitled "State Government-Enforcement and Regulation-Reorganization." See S.B. No. 162, 121st Gen. Ass., File 37 (Ohio 1995). This legislation recodified § 4101.17 as § 4112.14, thereby placing it in O.R.C. Chapter 4112. The text of the provision was unchanged. See id.
Subsequent to this recodification, the Ohio legislature passed tort reform legislation that amended § 4112.14 to expressly include a two-year statute of limitations. This change was effective January 27, 1997. However, on August 16, 1999, the Ohio Supreme Court held the tort reform act unconstitutional in toto. See State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, 1111 (1999).
We are therefore required to determine whether the period of limitations applicable to § 4112.14 prior to enactment of the tort reform act — and thus applicable today — was six years, under Morris, or 180 days, under Bellian. IBP contends that we are bound by the Ohio Supreme Court's blanket statement in Bellian that all age discrimination claims brought pursuant to Chapter 4112 are subject to the 180-day statute of limitations found in § 4112.02(N). Ziegler argues that the blanket rule announced in Bellian is inapplicable to § 4112.14. For this proposition, Ziegler relies on two unreported Ohio Court of Appeals cases that addressed the very issue presented here.
In Leonardi v. Lawrence Indus., Inc., No. 72313, 1997 WL 547825, at * 3 (Ohio
In Lehmann v. AAA Cincinnati, the Ohio Court of Appeals found the reasoning in Leonardi to be persuasive, and agreed that the Ohio Supreme Court's decision in Morris controlled. No. C-980163, 1999 WL 162151, at *1 (Ohio Ct.App. Mar.26, 1999). The Lehmann court similarly rejected the notion that the rule articulated in Bellian was controlling, since Bellian was decided prior to the recodification of § 4101.17 as § 4112.14. Id.. The court concluded that the period of limitations applicable to § 4112.14 was six years. Id.
We have found one federal court decision on point. In Vanbourgondien v. Horticulture Farms, Inc., the United States District Court for the Southern District of Ohio succinctly termed the issue as follows: "[W]hether the [Ohio] Supreme Court's holding in Bellian — that all age discrimination claims brought under Chapter 4112 are subject to a six-month statute of limitations — has sub silentio overruled Morris in light of the ... recodification, and thereby converted the statute's previous six-year statute of limitations to one of six months." No. 3-96-282, 1997 WL 1764762, at *3-4 (S.D.Ohio July 14, 1997). The district court concluded that § 4112.14 retained its six-year limitations period under the Ohio Supreme Court's Morris decision, and that Bellian was inapplicable. Id. at *4.
The Vanbourgondien court noted that where a statute that has been construed by the Ohio Supreme Court is later amended having substantially the same terms, the Ohio legislature is presumed to have been familiar with its construction and to have adopted it as part of the law, unless it expressly provides for a different construction. Id. at *3 (citing Spitzer v. Stillings, 109 Ohio St. 297, 142 N.E. 365, 367 (924)). The court concluded, therefore, that the Ohio General Assembly was presumably familiar with the Morris court's decision that the six-year statute of limitations applied to § 4101.17 at the time of the recodification, and since it made no express provision to the contrary, it was further presumed that the General Assembly intended to retain the six-year limitations period after its recodification. Id. at *3-4. The Vanbourgondien court rejected the argument that the Ohio Legislature intended to rely upon the Bellian holding to overrule, sub silentio, the Morris holding that the six-year statute of limitations applied, merely by recodifying § 4101.17 and placing it in Chapter 4112. The district court noted that such a result would be absurd and unreasonable, particularly since Bellian was predicated upon a factual scenario that was materially altered by the inclusion of former § 4101.17 into Chapter 4112. Id. at *4.
Although Ziegler argued before the district court that the period of limitations was six years under Morris, and provided the court with the two unpublished Ohio appellate court cases discussed above, the district court did not address his contention. Rather, the court assumed that the limitations period applicable to age discrimination claims brought pursuant to
In diversity cases, the federal courts must apply state law "`in accordance with the then controlling decision of the highest state court.'" United States v. Anderson County, Tennessee, 761 F.2d 1169, 1173 (6th Cir.1985) (quoting Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941)); see Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). If the forum state's highest court has not addressed the issue, the federal court must ascertain from all available data, including the decisional law of the state's lower courts, what the state's highest court would decide if faced with the issue. See Bailey v. V & O Press Co., 770 F.2d 601, 604 (6th Cir.1985) (citing cases). "Where a state's highest court has not spoken on a precise issue, a federal court may not disregard a decision of the state appellate court on point, unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1485 (6th Cir.1989); accord Northland Ins. Co. v. Guardsman Products, Inc., 141 F.3d 612, 617 (6th Cir.1998). This rule applies regardless of whether the appellate court decision is published or unpublished. See Talley v. State Farm Fire & Cas. Co., 223 F.3d 323, 328 (6th Cir.2000); Puckett, 889 F.2d at 1485. Moreover, "[a]n intervening state decision must be given its full effect and treated as though the decision existed during the pendency of the action before the district court." Talley, 223 F.3d at 327.
IBP offers two rationales for its contention that § 4112.14 claims are subject to a 180-day limitations period. First, it argues that the recodification of § 4101.17 as § 4112.14 brought this provision within the Bellian blanket statement that all age discrimination claims brought pursuant to O.R.C. Chapter 4112 are subject to the § 4112.02(N) 180-day statute of limitations. Second, IBP argues that we must disregard the unreported decisions of the Ohio appellate courts, suggesting that were we to follow those courts, we would "create the illogical circumstance of two different statutes of limitations to redress the same incident of alleged age discrimination."
We reject IBP's assertion that we are bound by the Ohio Supreme Court's blanket statement in Bellian. The court in Bellian was addressing the issue of whether age discrimination claims brought pursuant to § 4112.99 were subject to a four-year or 180-day period of limitations. That court had no occasion to consider the limitations period applicable to § 4112.14 claims, since recodification of § 4101.17 as § 4112.14 had not yet occurred at the time Bellian was decided. The Ohio Supreme Court has not had an opportunity to reconsider either its Morris decision or the validity of the blanket rule it announced in Bellian in light of the General Assembly's recodification of § 4101.17 as part of Chapter 4112.
Moreover, the Bellian court's rationale for determining that the § 4112.02(N) statute of limitations governed § 4112.99 is inapplicable here. There, the court was dealing with a specific statute and a general statute. 634 N.E.2d at 610. Applying Ohio rules of statutory construction, the court concluded that the specific statute necessarily prevailed over the more general. See id. Here, in contrast, we are dealing with two specific statutes. Therefore, Bellian is not controlling, and it does not fairly predict how the Ohio Supreme Court will determine the issue.
IBP's contention that "inconsistent limitations would lead to confusion, lack of guidance and disparate results" disregards
We have noted that there are two Ohio appellate court opinions on point, albeit unpublished, which concluded that the limitations period applicable to claims brought pursuant to § 4112.14 is six years. After the district court's decision below, the Ohio Court of Appeals again held, this time in a published opinion, that the limitations period applicable to § 4112.14 is six years. See Ahern v. Ameritech Corp., 137 Ohio App.3d 754, 739 N.E.2d 1184, 1202 (citing Leonardi, 1997 WL 547825), appeal denied, 735 N.E.2d 453 (Ohio 2000). As stated previously, we "may not disregard a decision of the state appellate court on point, unless [we are] convinced by other persuasive data that the highest court of the state would decide otherwise." Moreover, we must give an intervening state decision its full force and effect, despite the fact that the decision was unavailable to the district court at the time it rendered its decision. See Talley v. State Farm Fire & Cas. Co., 223 F.3d 323, 327 (6th Cir.2000). IBP has cited no cases, published or unpublished, that support its contention that a 180-day limitations period applies to § 4112.14 claims.
We are convinced that if the Ohio Supreme Court were presented with the issue, it would decide that the period of limitations applicable to claims brought under § 4112.14 continues to be six years under Morris. Accordingly, we conclude that the district court erred in granting IBP's motion for judgment on the pleadings and in dismissing Ziegler's § 4112.14 claim.
B. AMENDMENT OF THE COMPLAINT
1. Standard of Review
Normally, we review a district court's decision denying a plaintiff's motion for leave to amend a complaint under Rule 15(e) for abuse of discretion. See Begala v. PNC Bank, Ohio, Nat'l Assoc., 214 F.3d 776, 783 (6th Cir.2000). When, however, the district court has based its decision to deny leave to amend on a legal conclusion that the amended pleading would not withstand a motion to dismiss, we review such a decision de novo. See Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir.2000); Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir.1997). Here, the district court denied Ziegler's motion for leave to amend because it believed that the proposed amended complaint would still fail to state a claim, and amendment was therefore futile. Thus, we review the district court's decision de novo. See Hahn v. Star Bank, 190 F.3d 708, 715-16 (6th Cir.1999).
As noted previously, in response to IBP's motion for judgment on the pleadings, Ziegler twice moved for leave to file an amended complaint. By his first motion, Ziegler sought to elect a single remedy under Chapter 4112. By his second motion, he sought to add a claim for age discrimination in violation of public policy.
Leave to file an amended complaint "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), and should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Hahn, 190 F.3d at 715. Other than the untimeliness of Ziegler's § 4112.14 claim, IBP does not contend that there are any other bases for denying Ziegler's motion to amend. In fact, IBP conceded at oral argument that if we were to find Ziegler's § 4112.14 claim timely, then his public policy claim is similarly timely. We have held under Ziegler's first claim of error that his § 4112.14 claim was timely filed. Therefore, we also conclude that Ziegler's common law wrongful discharge claim, which is based on § 4112.14, is similarly timely. See Lehmann v. AAA Cincinnati, No. C-980163, 1999 WL 162151, at *2 (Ohio Ct. App. Mar.26, 1999).
Because IBP was not entitled to judgment on the pleadings, amendment of Ziegler's complaint would not have been futile. Accordingly, we hold that the district court improperly denied Ziegler's motion to amend.
For the foregoing reasons, we
Ziegler also contends that, because his cause of action accrued while the Tort Reform Act was effective, the two-year statute of limitations applies to his claim. He contends that any other result would violate the constitutional prohibition against taking property without due process of law. Because we conclude that § 4112.14 is subject to a six-year period of limitations, we need not address this issue.