Lead Opinion
NATHANIEL R. JONES, J., delivered the opinion of the court, in which MERRITT, J., joined. ALAN E. NORRIS, J. (pp. 1130-1131), delivered a separate dissenting opinion.
OPINION
Plaintiff Albert J. Scott appeals the grant of summary judgment in favor of Defendant Goodyear Tire and Rubber Company (“Goodyear”) in this age discrimination case brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. and Ohio’s counterpart statute.
I.
Albert Sсott began his employment with Goodyear on June 6, 1952 and continued working for the company until December 1993 — the date of his decision to retire. During his 41 years of uninterrupted service to Goodyear, Scott held many positions including stockman, gas man, general service man, delivery and sales person of Tires, Batteries and Accessories, credit sales manager, store manager, retail store operations representative, division inventory coordinator and, finally, Operations Manager. Scott received satisfactory reviews throughout his employment with Goodyear.
In his final position as Operations Manager, Scott bore responsibility for administering, implementing, and coordinating policy and procedures dictated by the company to its eastern region district managers and retail stores. Although Goodyear centered its operations managers within its headquarters in Akron, Ohio, Scott’s duties sometimes required him to travel to store locations to handle administrative matters directly with store managers.
In May of 1993, Goodyear began a comprehensive restructuring of its upper-level management structure, which resulted in the elimination of the five Operations Manager positions maintained by the company, including the position held by Scott.
With the elimination of the operations manager position, Goodyear created the new position of Retail Administrator. Where, according to Goodyear management, the former position had fed the “heavily paperwork oriented system” and bred “inefficiency between Akron and the regions” (J.A. at 941-42), Goodyear intended the new position to help improve management efficiency and customer relations. Under the new structure, the retail administrator position demanded a familiarity with computer technology, as the prevailing paper-based data recording system had become a major source of inefficiency.
Sometime around early December 1993, Ken Gable and Rob Morris, both subordinates of Goodyear’s Manager of Human Resources Paul Evert, were instructed by Evert to travel to Cleveland, Ohio and inform Scott that his position had been eliminated. Evert also requested that Gable cover the
Gable then presented Scott with three options in lieu of continuing on as an operations manager. First, Scott could accept layoff status and receive no benеfits at all and no possibility of recall. Second, Scott could accept layoff status, receive supplemental unemployment compensation benefits on a regular basis and remain under consideration for recall to a new position, if such a position became available at a later date.
As it turns out, some of the other former operations managers were retained and redeployed within the company. Shayon Smith was redeployed into a newly created retail administrator position based on his ability to “look at the overall process and then to get other people to cooperate with him that were not his peers” and his electronics background (J.A. at 677-78), as was Greg Wahrle, because his “programming skills” and his “team player” approach were highly rated among executives. J.A. at 662, 677. Rodney Gwinn accepted a district manager position in Phoenix. Goodyear officials stated in deposition testimony that Gwinn’s previous experience as a district manager made him a natural fit for the Phoenix position. J.A. at 676, 991. Thus, of the five former operations managers, only Scott and John Cox, the two oldest managers, were not offered definite redeployment opportunities within the company.
After his retirement, Scott brought this age discrimination action under the ADEA and a corresponding Ohio anti-discrimination statute on May 12, 1995, alleging that Goodyear’s decision to eliminate his position was impermissibly motivated by age considerations. During the subsequent discovery phase, Scott compiled a number of suspicious facts. First, as noted above, he uncovered the irregular manner with which the decision to eliminate his position was handled. According to the undisputed deposition testimony of Evert and Gable, the latter was instructed to inform Scott of the elimination of his operations manager position without asking further questions. Consequently, Gable entered the discussion with Scott unable to answer questions about why the company had decided not to redeploy him. According to Gable, this occurrence deviated from normal practice, since he, as human resources representative, was generally given latitude to inquire into the basis for a given employment decision and to assess for the adversely-treated worker his or her prospects for future employment with the company. On occasion, in fact, Gable was given permission to find other employment within the company for a dismissed employee.
In addition to the unusually vague response given to Scott, various statements of two of the three managers responsible for the decision to eliminаte Scott’s position indicated age bias. According to Edward Erce-govich,
Prior to trial, however, Goodyear submitted a summary judgment motion on Mаy 3, 1996, which the district court granted. Inexplicably, in the face of the economist’s conclusions, the district court stated that no evidence supported Scott’s contention that Goodyear managers forced him into retirement due to his age and thereby created an actionable instance of discrimination. Further, the district concluded that, even if Scott had raised a genuine factual question regarding a constructive discharge theory, he failed to provide additional evidence to support an inference that age-related bias motivated the adverse redeployment decision. Moreover, the district court determined that Scott failed to establish a prima facie еase of age discrimination because he voluntarily accepted early retirement. Scott then filed this timely appeal.
II.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
Under the ADEA, a plaintiff is typically required to proffer evidence of the following to make out a prima facie ease of age discrimination: (1) that plaintiff was between 40 and 65 years old; (2) that he was qualified for the particular position; (3) that he was subjected to adverse employment аction; and (4) that he was replaced by a younger individual. See Barnhart v. Pickrel, Schaeffer & Ebeling Co.,
The district court found, and parties appear to concede, that the law applicable to work force reduction cases is appropriate here. In such cases, this court takes account of the fact that the employer may not replace the plaintiff with a single worker. “Where, as here, there is a reduction in force, a plaintiff must either show that age was a factor in eliminating his position, or, where some employees are shifted to other positions, that he was qualified for another position, he was not given a new position, and that the decision not to place him in a new position was motivated by plaintiffs age.” Hawley v. Dresser Industries, Inc.,
A.
The first two prima facie elements appear to be established on the record. There is no dispute that Scott wаs 61 years old at the time his position was eliminated. Further, Scott maintained satisfactory marks throughout his 41 years of employment with the company and presented deposition testimony indicating that he took advantage of company-provided career development computer training. Thus, in common with the district court, we find that sufficient evidence exists on record to indicate that Scott was qualified for his position as operations manager.
Turning to the third prong, Scott alleges two theories of adverse treatment by Goodyear. First, Scott claims that he was constructively terminated by Goodyear due to his age. Second, Scott claims that Goodyear management intentionally decidеd against redeploying him on the basis of his age. We discuss each theory in turn.
“The law in this circuit is clear that a constructive discharge exists if working conditions are such that a reasonable person in the plaintiffs shoes would feel compelled to resign.” Bruhwiler v. University of Tennessee,
The district court addressed the constructive discharge issue by analyzing this court’s decisions in Ackerman v. Diamond Shamrock Corp.,
There is no evidence that Gable coerced Scott into accepting retirement. On the contrary, the record indicates that Gable fully explained Scott’s available options. Although Scott contends that the “evidence is clear” that Goodyear never intended to recall him and that this rendered the layoff option illusory, there is no evidence to substantiate this allegation.
J.A. at 26. We disagree.
The Ackerman court considered an instance in which the plaintiff, Edward Ackerman, at age 59, was informed that his director of communications job was being eliminated in the wake оf corporate reorganization. Ackerman,
Finding no evidence of discriminatory intent, other than the conclusory allegations of Ackerman that he could “think of no reason for his discharge other than his age,” we determined that Ackerman voluntarily signed the early retirement offer and thus was not constructively discharged. Id. at 69-70. The court determined that Ackerman had not upheld his prima facie burden. Id. at 70. Ackerman, therefore, stands for the proposition that a mere allegation that improper motives led an employer to offer early retirement benefits is insufficient to prove that the employee who accepted those benefits was constructively discharged.
In Wilson, this court considered whether the plaintiff in that ease presented adequate evidence indicating that age considerations motivated the decision to (1) eliminate his position and (2) offer him a choice of a lesser
Additionally, the Wilson court determined that the plaintiff did not demonstrate that he was actually or constructively discharged. A key factor in the decision to find against discharge was that Firestone had offered Wilson “legitimate opportunities for continued employment.” Id. at 515. Since Wilson had, among other choices, the option to replace any of three of his former subordinates or accept early retirement, the court found that he was not forced to resign from the company. Id.
Wilson and Ackerman, while similar to the facts of the instant case, both differ by the evidence presented by the plaintiff and, at least with respect to Wilson, on the facts surrounding the alleged discharge. In its reliance on these two cases, the district court overlooked some vitally important evidence submitted by Scott at the summary judgment phase indicating that the retirement decision was less than voluntary.
First, we note the odd directives given to Gable, the Goodyear Human Resources executive. Gable was informed by Paul Evert that the position held by Scott would be eliminated and was told to travel to the Cleveland field office to report that fact to Scоtt. Gable, who testified that he had participated in at least three corporate reorganizations with Goodyear, had informed other Goodyear employees of such job eliminations in the past and many times received instructions to offer such employees lower level positions in lieu of lay-off. However, in this case, it appears that Evert cut off any further discussion regarding the decision to eliminate Scott’s position.
Additionally, Scott recalled in deposition testimony that Gable and Morris, the other Goodyear executive present at the meeting with Scott in Cleveland, used the term “laid off’ to describe the elimination of his position. Consequently, when Scott attempted to query Gable about the reasons for the elimination of his position and the possibility of future employment, Gable could not provide any answers. While the record does not reflect whether Gable made a formal or informal practice of informing other persons subjected to job elimination of their likelihood of being recalled, his inability to address the reasons for the elimination and decision not to redeploy Scott seem substantial enough reason for Scott to entertain the subjective belief that he would not be recalled if he chose lay-off status. Further, it seems that Wahrle and Smith may not have been told that they were being “laid off,” and, more significantly, both were redeployed.
Scott thus chоse retirement having no definite prospect of continued employment with the company. Therefore, where ordinary charges of constructive discharge typically entail a decision on the part of the employee to resign in light of an intolerable working environment or some such allegation, Scott decided upon the option best suited to his needs with the understanding that he did not have the option of continued employment. For that reason, we find that the doctrine of constructive discharge applies in this case.
In addition to the constructive termination theory, Scott charges that the decision not to redeploy him serves as an actionable basis for going forward with his case. We note that, while this court has never recognized a right to redeployment under the ADEA, a decision made by an employer to redeploy younger employees while not rede
Examining the pertinent facts, we first note that the two oldest operations managers, Scott, at age 61, and Cox, at age 63, were not redeployed by the company at the time those positions were eliminated. Further, Scott has presented statistical evidence suggesting that the average age of emрloyees whose positions were eliminated (47.35 years old) was significantly higher than the average age of employees whose positions remained intact through the corporate restructuring (40.47 years old). The district court took exception to the probative value of these statistics because 66 employees included in the redeployed comparison group “were never considered for redeployment since them positions were not in jeopardy [and therefore] the presumption that the sample was representative of all candidates for redeployment is false.” After reviewing the statistical findings, however, we conclude that the district court hastily cast thеm aside for the following reasons.
First, while the statistics were not as probative as they perhaps may have been, they do reveal some startling age comparisons between persons occupying positions that were eliminated and those unaffected by the reorganization. In addition to showing a nearly seven-year age disparity between the two groups, the statistical evidence, which was compiled by two economists, Drs. Harvey Rosen and John Burke, pointed to a less than 1% chance that the discrepancy arose due to randomness. Not only does this evidence increase the likelihood that the decisions to eliminate certain positions were based on age but it аlso makes more likely the possibility that age played a part in redeployment decisions.
Second, the district court, borrowing language from Chappell v. GTE Products Corp.,
B.
Having found Scott to have presented a prima facie case of discrimination, we turn to the question of whether “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine,
III.
Because we find that Scott has presented sufficient evidence to support a prima facie case, we find that the district court ruling to the contrary should be reversed. Additionally, we further conclude that the district court had sufficient evidence of pretext to create a jury question on that issue. Accordingly, we REVERSE the district court’s grant of summary judgmеnt to Goodyear and REMAND this case for proceedings consistent with this opinion.
Notes
. Although Scott brought his claim under section 4101.17, the Ohio age discrimination statute has since been recodified at Ohio Rev.Code Ann. § 4112.14 (Anderson 1988).
. "Redeployment” and its derivatives are the parties’ choice terms for “reassignment.”
.The company only maintained five operations manager positions. Each operations manager took responsibility for a particular region of Goodyear's national business.
. Under this second option, Scott risked losing medical benefits after 18 months of taking layoff status.
. The operations manager positions were not the only positions eliminated as a result of the corporate rеorganization. In all, forty-eight positions were eliminated as part of this restructuring, including regional secretaries, operations staff persons, administrative managers and district administrators.
.Ercegovich himself brought a substantively identical age discrimination suit against Goodyear after Goodyear eliminated his position and failed to redeploy him. We reversed the district court’s grant of summary judgment to Goodyear because we found that material issues of fact existed as to whether Ercegovich was denied a transfer because of his age. Ercegovich v. Goodyear Tire & Rubber Co.,
. The affidavit states in full substantive part:
Edward E. Ercegovich, after being duly sworn, according to law deposes and states that he is of legal age, sound mind, and has personal knowledge of the following:
1. That hе was employed by the Goodyear Tire and Rubber Company in its Retail Stores Division from February 7, 1962, until October 28, 1994;
2. That from or about January, 1992, through the end of his employment with Goodyear he served as Quality Systems Coordinator;
3. That while functioning in that position in or about late 1993, he had the opportunity to hear and did hear Edward Gallagher, then Vice President of the Retail Stores Division, substantively state in a meeting on the seventh floor that "This company is being run by white haired old men, waiting to retire", and "This must change”; and
4. That while still functioning in the same position with the Retail Stores Division in or about August 25, 1995, I heard Gordon Hewitt, Director of Finance for the Retail Stores Division, substantively state in his 1995 Budget/Business Plan presentation to the group that "Some peoрle will lose their jobs, but in time, we will replace them with young college graduates at less money.”
J.A. at 202. While Ercegovich’s affidavit seems in order, we note that Scott, in his brief, also attributes quotes. to Hewitt through deposition testimony of Gable to the effect that Goodyear "needs to hire younger men.” However, a closer look at the deposition in question suggests that Gable was actually quoting former Goodyear Executive Mel Morrison, not Hewitt. See J.A. at 549. Morrison left Goodyear in 1990, several years before the relevant temporal period regarding Goodyear's allegedly discriminatory acts. Hence, we have serious doubts of any probative value that the quotes from the Gable deposition may have in this case.
. In King v. General Electric Co.,
A chi-square test evaluates the disparity between the expected and observed frequency of a certain outcome. For example, suppose that of the individuals terminated at a given time, a greater percentage of them are within the protected age class. We want to determine whether the disparity in termination rates can be attributed to chance, or whether the disparity is so large, that some factor other than chance probably influencefs] the selection of the individuals terminated.... A[c]hi-square test will determine whether the chance or other factors influenced the outcome.
Id. at 626 n. 5 (citing Walter Connolly, Jr. et al. Use of Statistics in Employment Opportunity Litigation§ 10.05[2] (1991)).
Dissenting Opinion
dissenting.
As this court has observed, “The ADEA only bars discrimination on acсount of age; it does not place on employers an affirmative obligation to retain older workers whenever a reduction in staff becomes necessary.” Wilson v. Firestone Tire & Rubber Co.,
The majority bases its decision upon a statistical study submitted by plaintiff and comments by two Goodyear employees that imply age bias. The district court considered this evidence, but deemed it insufficient to support plaintiffs claim.
With respect to the statistical study, the majority concedes that “the statistics were not as probative as they perhaps may have been.” The district court explained the study’s shortcomings in these terms:
Plaintiffs statistical analysis compares the group of the eliminated employees with a group comprised both of non-eliminated employees and employees whose positions werе not affected by the reorganization. As 66 of those employees included in the “redeployed” group were never considered for redeployment since their positions were not in jeopardy, the presumption that the sample was representative of all candidates for redeployment is false. Since Scott’s prima facie case depends on the premise that age motivated Goodyear’s redeployment decision, “appropriate statistical data” must be limited to the pool of employees eligible for reassignment.
Statistical evidence is notoriously susceptible to manipulation. Consequently, Barnes cautions us that the data relied upon must be gatherеd from an appropriate source in order to support an inference of discrimination. Barnes,
The majority does not base its decision upon statistical evidence alone. It also relies upon statements contained in an affidavit submitted by Goodyear employee Edward Ereegovich. This affidavit attributes statements of age bias to Goodyear managers Gordon Hewitt and Ed Gallagher.
Ereegovich, who is currently pursuing his own age discrimination claim against Goodyear, states that he heard Gallagher make the statement about “white haired old men waiting to retire” and heard Hewitt state
In my view, these statements are the strongest evidence that plaintiff musters in support of his contention that Gоodyear acted with discriminatory animus. However, standing alone, they are not enough to survive summary judgment. As the district court pointed out, Goodyear came forward with substantial rebuttal evidence that plaintiff was not as well-qualified as other candidates for the positions awarded during redeployment. For instance, plaintiff did not possess either recent field experience or computer programming skills, which were required for two of the available positions. Thus, even if we assume that the statements attributed to Gallagher and Hewitt were sufficient for plaintiff to establish a prima facie case, Goodyear has come forward with evidence that it used legitimate criteria in its decision making process.
Accordingly, I would affirm the district court’s grant of summary judgment.