2018 Ohio 5138
Ohio Ct. App.2018Background
- Darrell Bresler, employed ~41 years, was furloughed during EveryWare Global's 2014 shutdown and was not recalled; he was ~60 when terminated and later sued alleging age discrimination and related relief.
- Appellees included plant manager Brent Rock, SVP Daniel Taylor, and CEO Samie Solomon; the corporate defendant later was dismissed due to bankruptcy.
- Appellant alleged he was not rehired and was offered re-employment conditioned on signing a release (or dismissing his claim); he alleged this conditioning was retaliatory.
- Trial court granted directed verdict on certain claims, submitted the age-discrimination claim to the jury, and gave a requested jury instruction stating that conditioning rehiring on dismissal of claims is not an adverse employment action. The jury ruled for defendants; judgment entered for Rock, Taylor, and Solomon.
- Posttrial, Bresler moved to amend to add a retaliation damages claim and sought a new trial based on omission of a retaliation instruction; the trial court denied both. Bresler appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether it is an adverse employment action to condition rehiring on dismissal/release of claims | Bresler: conditioning rehire on withdrawing suit is retaliatory and should be considered an adverse employment action | Defs: employer has no duty to rehire after RIF; offering rehire conditioned on a release is a lawful settlement negotiation and not adverse | Court: Instruction was legally correct; conditioning rehire/settlement releases is not an adverse action where employer had no obligation to rehire; overrules assignment of error |
| Whether plaintiff gave fair notice of a retaliation claim based on conditional rehire (pleading/amendment) | Bresler: Count 3 and complaint language put defendants on notice of retaliation claim and trial evidence supported amendment | Defs: Count 3 sought injunctive relief only; no retaliation damage claim was pled or prosecuted prior to trial | Court: Count 3 sought injunctive relief (a remedy), not a damages-based retaliation claim; denying amendment and excluding the new retaliation claim was not error |
Key Cases Cited
- EEOC v. Sundance Rehab. Corp., 466 F.3d 490 (6th Cir. 2006) (refusal to pay discretionary severance tied to an unsigned release is not an adverse action in retaliation analysis)
- Barnes v. Gencorp, Inc., 896 F.2d 1457 (6th Cir. 1990) (no ADEA duty to transfer or displace workers after a reduction in force)
- Alexander v. Gardner-Denver Co., 415 U.S. 36 (U.S. 1974) (employees may waive discrimination claims as part of a voluntary settlement)
- Lackey v. Jackson County, 104 Fed.Appx. 483 (6th Cir. 2004) (statements about not rehiring irrelevant where plaintiff did not reapply)
- Jones v. Alabama Power Co., 282 Fed.Appx. 780 (11th Cir. 2008) (no materially adverse employment action where plaintiff did not seek reinstatement)