Lead Opinion
The issues presented for review involve the sufficiency of evidence that LCI terminated plaintiffs-appellees on the basis of their age in violation of R.C. 4112.02(N), and the propriety of the damages awarded by the jury. Plaintiffs-appellees contend that evidence of discriminatory remarks demonstrated that a pervasive, discriminatory animus existed at LCI, in particular with Lawrence McLernon, and was sufficient to support a finding of age discrimination. Because we determine that the evidence was not sufficient to support the verdict, we reverse the court of appeals.
R.C. 4112.02 makes it unlawful for an employer to discharge without just cause or otherwise discriminate against a person with respect to any matter related to employment on the basis of age. R.C. 4112.14 (formerly R.C. 4101.17) specifically prohibits an employer from discriminating against a job applicant or discharging without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job.
In Mauzy v. Kelly Services, Inc. (1996),
Discriminatory intent may also be established by direct evidence of age discrimination, which is evidence other than the four-part demonstration of Barker. Kohmescher v. Kroger Co. (1991),
The evidence at trial consisted of remarks by McLernon and other LCI executives as proof of LCI’s discriminatory attitude and continuing animus toward older workers. However, none of the remarks, except for the single reference to Alzheimer’s disease, had any connection to either of these plaintiffs. There was no link or nexus between the remarks and plaintiffs’ discharges that could logically support the inference that the discharges were the result of discriminatory intent. The remarks were distant in time and in fact to plaintiffs’ terminations. Lopez testified as to comments made in 1989, more than one year before these plaintiffs were terminated. Frasher’s and Florek’s testimony related to comments even more remote, dating back to 1985, years before either Byrnes or Otto became employees of LCI.
The remarks did not relate to Byrnes and Otto or the decisions to terminate their employment. They related to other persons and positions within the company, specifically an executive secretary and sales and marketing personnel. Otto was a vice president who worked in operations, and Byrnes was a high level executive.
The isolated statement attributed to McLernon about Alzheimer’s disease, a disease which generally afflicts the elderly, refers only to Otto and may best be characterized as inappropriate and insensitive. This single comment by McLernon is insufficient to form the basis of Otto’s claim for age discrimination, considering that Byrnes made the final decision to terminate Otto, that Byrnes testified that his decision was not related to Otto’s age, and that there is no evidence to the contrary.
Although the record is replete with testimony of LCI’s business woes and tales from former LCI employees, glaringly absent from the record below is evidence which points to age discrimination against these plaintiffs, an observation made by the trial judge when he commented at the close of all evidence that “98 percent of the evidence in the record doesn’t have anything to do with age discrimination.’’ In fact, there is ample testimony of the failure of performance by both Otto and Byrnes.
Even plaintiffs-appellees concede that they do not meet the four-part Barker analysis. Byrnes was the executive who terminated Otto, who was not replaced. Byrnes himself was then terminated and replaced by McLernon, who was older. Therefore, the fourth prong of the Barker analysis was not met, as neither Byrnes nor Otto was replaced by a person outside the statutorily protected class.
Instead, plaintiffs-appellees rely upon evidence in the form of statements by McLernon and other LCI executives over a period of many years to prove discriminatory intent against older workers in general. However, this theory,
Absent some causal connection or link between an employer’s discriminatory statements or conduct and a plaintiff-employee, there is no permissible inference that the employer was motivated by discriminatory animus to act against the plaintiff-employee. The mere fact that an employer may have discriminated against other employees, standing alone, is insufficient. The issue is whether this employee was discharged because of his age. The evidence here clearly does not support such a causal link or nexus.
Therefore, we hold that, in a cause of action for age discrimination under R.C. 4112.02 or 4112.14, when relying upon the direct evidence standard, which is evidence other than the four-part test of Barker v. Scovill, Inc. (1983),
Judgment reversed.
Dissenting Opinion
dissenting. There is a majority in this case, but no majority opinion. The majority consists of five justices who conclude that the decision of the court of appeals should be reversed. The majority, however, is fractionalized and represented by two separate opinions, neither of which has garnered the four votes necessary to establish binding legal precedent as to what the proof requirements are or should be in an action for age discrimination brought under R.C. 4112.02 or 4112.14. Under normal circumstances, I would be apt to conclude that the substance of such nonmajority opinions is innocuous and regard any direct response thereto as ostentatious. However, I deem it necessary in this case to fully and directly respond to the lead and concurring opinions, despite the fact that neither enjoys majority support. This is because both opinions are ultimately of the same mind regarding the restrictions and limitations to be placed upon the use of circumstantial evidence in an age discrimination case in direct contravention of Mauzy v. Kelly Services, Inc. (1996),
The lead opinion derogates Mauzy by framing the ultimate issue of age discrimination in terms of a prima facie case and employing causative phraseology to mask what is essentially a direct evidence requirement. When the lead opinion is stripped of its veneer of causative language, all that remains is the singular holding that the plaintiff must either satisfy the four-element indirect test for establishing a prima facie case set forth in Barker v. Scovill, Inc. (1983),
The concurring opinion “is based specifically on the fact that the fourth prong of the test established in Barker * * * is absent in this case, to wit, that plaintiffsappellees were not replaced by a person or persons not belonging to the protected class.” Thus, the lead and concurring opinions would both hold that Barker’s nonstatutory elements must be proved in order to make out a case for age discrimination, despite the existence of other evidence from which a jury may infer age discrimination. Since this is precisely and unequivocally what was rejected in Mauzy, and for all the foregoing reasons, I find it imperative to write in defense of Mauzy.
The present action was fully tried on the merits in the trial court. To now frame the issue in terms of whether plaintiffs-appellees, Thomas J. Byrnes and Richard Otto, made out a prima facie case “unnecessarily evade[s] the ultimate question of discrimination vel non.” United States Postal Serv. Bd. of Governors v. Aikens (1983),
The only relevant question at this point is whether the defendants intentionally discriminated against the plaintiffs. Since the jury in the case sub judice has answered this question in the affirmative, the issue presented to this court is whether plaintiffs produced sufficient evidence to sustain the jury’s finding. This issue should be decided no differently from “disputed questions of fact in other civil litigation.” Aikens, supra,
On the state of the record, the court should have proceeded directly to the disputed question of whether the plaintiffs presented sufficient evidence to support the jury’s finding that Byrnes and Otto were the victims of age discrimination, just as we do when deciding other ultimate questions of fact. There is no reason to allow this case to become mired in a discussion of the elements or alternative methods of proving a prima facie case.
Also, in evaluating the sufficiency of plaintiffs’ evidence, it is essential to understand that in proving discrimination the plaintiff is not required to produce any certain kind of evidence and, in particular, may prove discrimination by circumstantial evidence. The plaintiff “is not limited to presenting evidence of a certain type.” Patterson v. McLean Credit Union (1989),
“As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves. Thus, we agree with the Court of Appeals that the District Court should not have required Aikens to submit direct evidence of discriminatory intent. See [International Brotherhood of] Teamsters v. United States,
Thus, it would also be erroneous to require plaintiffs “to submit direct evidence of discriminatory intent” in order to prevail. Id.,
A proper analysis, therefore, should reflect that the various ageist remarks by Lawrence McLernon constitute circumstantial evidence (in that they require an inference from the statements proved to the conclusion intended) that a discriminatory motive played a part in the challenged employment decisions. This kind of evidence may support a finding of discrimination irrespective of the McDonnell Douglas formula for establishing a prima facie case. Id.,
As the court of appeals aptly observed, these comments reflect “inaccurate notions that middle age equated with lack of energy, loss of memory and deficits in aggressiveness.” Such statements, therefore, are indicative of the very type of age-stereotyping that the General Assembly under R.C. 4112.02 and 4112.14 prohibited employers from acting upon. They also reflect an intent to bring such inaccurate notions to bear on employment decisions. McLernon’s comments are not expressions of political belief; they are an indication to the world of how he intends to act. In particular, they express a desire to clear out the older employees. The jury should be permitted to draw an inference from this evidence that McLernon’s ongoing and deep-rooted bias against older workers had influenced the decisional process at issue, especially since there was additional evidence that LCI had discriminated against other employees because of age. See Cooley, supra,
Thus, if we treat the issue of discrimination no differently from ultimate questions of fact in other civil litigation, or for that matter in criminal litigation, see State v. Jenks (1991),
The lead opinion begins by revisiting the requirements for and methods of establishing a prima facie case of age discrimination. It observes, on the one hand, that “[discriminatory intent may be established indirectly by the four-part analysis set forth in Barker [supra], adopted from the standards established in McDonnell Douglas Corp. [supra].” On the other hand, it continues, “[discriminatory intent may also be established by direct evidence of age discrimination, which is evidence other than the four-part demonstration of Barker.” Having thus dichotomized two opposing methods of establishing a prima facie case, the
In defining the “direct evidence standard,” the lead opinion correctly cites Mauzy for the proposition that “[a] plaintiff may establish a prima facie case by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent.” However, it then goes on to establish a legal standard of causation which is applicable only “when relying upon the direct evidence standard.” Under this standard, a finding of discrimination will be permitted only when the employer’s actions or discriminatory statements are aimed at the plaintiff and directed to the very decisional process at issue. The lead opinion will not permit the jury to infer that an illegitimate criterion entered into the decisional process where the plaintiff produces evidence that the very decisionmaker who actively or tacitly participated in the personnel decision at issue made repeated statements reflective of discriminatory animus toward a protected group of which plaintiff is a member. Nor would it allow the jury to draw such an inference from discriminatory comments made about the desirability or work abilities of minority “workers in general,” even when those comments are linked to the actual termination of other minority workers, or even when they reflect an intent to act in accordance therewith.
Thus, the lead opinion seeks to establish a formula under which the plaintiff must either satisfy the discrete elements specified in Barker or proceed under the “direct evidence standard.” It then uses causative language to define the “direct evidence standard” in such a way as to preclude it from being satisfied by circumstantial evidence. Indeed, it would take a tremendous amount of naivete to accept that the requirement that a statement must directly link a decisionmaker’s discriminatory animus to the plaintiff and the decision to terminate the plaintiff’s employment is not a requirement of “direct evidence” in the hornbook sense, that is, in contrast to circumstantial evidence. Simply, under this formula, the plaintiff must produce hornbook direct evidence of discrimination (as opposed to circumstantial evidence) in order to avoid application of Barker1 s four-element prima facie test. As a result, under the formula invoked by the lead opinion, the Barker prima facie test is the only way that a plaintiff can prove a case of age discrimination by circumstantial evidence.
This formula, however, is precisely the one rejected in Mauzy dressed up in causative attire. In Mauzy, the court of appeals created the exact same formula that the lead opinion creates today. As we explained, the court of appeals “agreed with Mauzy that ‘the four elements [to establish a prima facie case of age discrimination] set forth in the syllabus of Kohmescher * * * need not be proven
In this way, the court of appeals in Mauzy interpreted the words “direct evidence” as used in Kohmescher in the same way that today’s lead opinion has interpreted the “direct evidence standard” which it ascribes to Mauzy, i.e., as “amounting] to a rendition of a dichotomy between ‘direct’ and ‘circumstantial’ evidence.” Mauzy,
“While here, there were many instances of insensitive comments with respect to other personnel, there was no direct evidence that age discrimination took place, particularly as it related to appellees. In each of the comments cited by the majority, we can only infer that age was the cause for termination. Unlike Kohmescher, there is no direct evidence in the instances cited here and, certainly, no direct evidence with respect to appellees.
“ * * * the statements are not direct evidence of age discrimination, as it relates to appellees herein. Appellees should not be able to get around the evidentiary requirements of Barker based on inferences created from statements and any attitudes associated with them.” (Close, J., dissenting.)
Our primary and precise focus in Mauzy was to reject these notions. We very carefully and clearly explained that “McDonnell Douglas is one method, an indirect method involving the process of elimination, whereby the plaintiff may create an inference that an employment decision was more likely than not based on illegal discriminatory criteria. The process of elimination, however, is not the only method by which such an inference may be created.” Id.,
Accordingly, we held that “[t]he phrase ‘Absent direct evidence of age discrimination,’ as used in Kohmescher * * *, refers to a method of proof, not a type of evidence. It means that a plaintiff may establish a prima facie case of age discrimination directly by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent.” Mauzy, supra, at paragraph one of the syllabus.
Mauzy made clear that there was no limitation placed upon the type of evidence that a plaintiff may produce instead of the Barker four-element prima facie test. Only when the plaintiff lacks direct, circumstantial or statistical evidence of discrimination is he or she required to prove the discrete elements specified in Barker. Simply stated, the Barker test is not the only way for a plaintiff to raise an inference that an employment decision was based on illegal discriminatory criteria. The plaintiff is entitled to prove his or her case by circumstantial evidence of age discrimination outside the confines of Barker’s four-element prima facie test.
Similarly, the concurring opinion “is based specifically on the fact that the fourth prong of the test established in Barker * * * is absent in this case, to wit, that plaintiffs-appellees were not replaced by a person or persons not belonging to the protected class.” However, even if at this late stage of the proceedings we allow the inquiry to become entangled in a discussion of the prima facie ease, we cannot require Byrnes and Otto to prove that they were replaced by a person not belonging to the protected class without directly contravening Mauzy. The replacement requirement is not a statutory requirement. Neither R.C. 4112.02 nor 4112.14 imposes any such requirement. Instead, it is imposed as part of a judicially created formulation which “a!low[s] the plaintiff to raise an inference of discriminatory intent indirectly [by] serving] to eliminate [one of] the most common nondiscriminatory reasons for the employer’s action.” Mauzy, supra,
The approach advanced in the lead and concurring opinions, therefore, stands in diametric contradiction to our holding in Mauzy, as well as to the holdings of the United States Supreme Court, regarding the plaintiffs ultimate evidentiary burden in cases of disparate treatment of individuals. In addition, the lead opinion incorporates a number of erroneous assumptions about what kinds of discriminatory comments made by an employer will suffice to support a finding of discrimination;
First, it assumes that discriminatory comments about “older workers in general” are insufficient to support an inference of age discrimination. The lead opinion states that “this theory, called the ‘toothpaste tube’ theory by the court of appeals, has no basis in law.” Instead, it reasons, “[a]ge-related comments referring directly to the worker may support an inference of age discrimination.”
Leaving aside for the moment the lead opinion’s characterization of the court of appeals’ reference to oral hygiene,
Second, the lead opinion concludes that comments which are “made in reference to totally unrelated employee categories cannot support a finding of age discrimination against employees in a wholly different classification.” In this regard, it explains that “[t]he remarks did not relate to Byrnes and Otto or the decisions to terminate their employment. They related to other persons and positions within the company, specifically an executive secretary and sales and marketing personnel.”
The underlying assumption here is that discriminatory statements must directly relate to the challenged employment decision in order to support a finding of discrimination. Thus, in the absence of a direct relationship between the employer’s ageist remarks and the decisional process at issue, an inference of discrimination is impermissible. In Radabaugh v. Zip Feed Mills, Inc. (C.A.8, 1993),
“We do not believe corporate planning documents that set forth a company’s overall direction and that demonstrate that a decisionmaker considers youth a positive factor (and, by inference, age a negative factor) can fairly be characterized as ‘stray remarks,’ even if the documents do not directly relate to the challenged employment decision.” (Emphasis added.)
In Cooley, supra,
Similarly, in Stacks v. Southwestern Bell Yellow Pages, Inc. (C.A.8, 1994),
“ ‘Not all comments that reflect a discriminatory attitude will support an inference that an illegitimate criterion was a motivating factor in an employment decision.’ Radabaugh v. Zip Feed Mills, Inc.,
Moreover, McLernon’s comments, while perhaps made in reference to employees other than a vice president and a high level executive, nevertheless reflect, as the court of appeals stated, “inaccurate notions that middle age equated with lack of energy, loss of memory and deficits in aggressiveness.” Also, as previously noted, McLernon’s comments reflect an intent to act against older employees. I cannot agree that McLernon’s statements can only be construed as though he intended them to mean that he would discriminate on the basis of age only as to particular classifications of employees. It was perfectly reasonable for the jury to infer from these statements that McLernon’s discriminatory motives carried over to other employment decisions and to other categories and classes of employees. Thus, the issue of whether McLernon’s discriminatory state of mind was compartmentalized according to employee classifications was one of fact, which the jury resolved.
Additionally, I have some very serious reservations about endorsing any general rule that allows an employer to compartmentalize its discriminatory remarks when they prove to be disadvantageous to the employer’s subsequent litigation posture. See Lockhart v. Westinghouse Credit Corp. (C.A.3, 1989),
In its third error concerning what kinds of discriminatory comments are sufficient, the lead opinion implicitly concludes that the temporal remoteness of discriminatory comments should, of itself, bar any inference that the bias expressed thereby entered into the decisional process. It explains as follows:
“The remarks [attributable to McLernon and other LCI executives] were distant in time' * * * to plaintiffs’ terminations. Lopez testified as to comments made in 1989, more than one year before these plaintiffs were terminated. Frasher’s and Florek’s testimony related to comments even more remote, dating back to 1985, years before either Byrnes or Otto became employees of LCI.”
This principle has special force when applied in the context of evaluating expressions of discriminatory animus in an action for disparate treatment of an individual. This is because discriminatory animus does not necessarily dissipate after the lapse of some arbitrarily imposed period of time. As explained in Wilson v. Aliceville (C.A.11, 1986),
“ ‘Presumably, people don’t pick up a racially prejudiced attitude overnight. The jury is entitled to consider that later than 1982, he [the decisionmaker] was referring to the plaintiff as a “goddam nigger.” He felt that way about him when he wouldn’t hire him. It’s a jury question. And it’s not too remote. In fact, I think I would have to oblige myself to human nature to agree with you.
“ ‘If the man is prejudiced in late 1982, it’s almost certain he was in early 1982. Now, if he was unprejudiced in late 1982, he might have learned something in the meantime. But people don’t usually pick up racial prejudice overnight.
“ ‘And if they have got it in late 1982, it is almost certain they had it in early 1982. At least the jury can so consider, and they have the right to consider it in the light of human experience. And that has been my human experience.’ ”
Thus, as the court in Riordan v. Kempiners (C.A.7, 1987),
“Proximity in time to the alleged discrimination is a proper consideration in assessing probative value; but given the importance of circumstantial evidence in proving (and, equally, disproving) employment discrimination, a blanket exclusion of evidence of events that occurred before or after the discrimination is arbitrary.”
In the case sub judice, Priscilla Frasher, Daniel Lopez and Ed Florek testified as to numerous discriminatory age-related statements made by McLernon. Construing the evidence most strongly in favor of plaintiffs-appellees, Posin v. A.B.C. Motor Court Hotel, Inc. (1976),
Moreover, the only case cited by the lead opinion in support of any of its critical conclusions is Phelps, supra,
“The jury believed Cooley’s contention that * * * he was really fired as part of a corporate effort to clear out older employees. In the course of proving his contention, Cooley testified that Patrick [the president of Carmike Cinemas by whom Cooley was employed] despised older people. For example, he related that Reddish, who had previously held the higher corporate position of vice president and general manager in Columbus, Georgia, had once told him of a strange conversation with Patrick that had taken place on a Thanksgiving Day. As Cooley remembered it, Reddish said to him:
“ ‘[On] Thanksgiving [Patrick] made the statement, “I got to go over to my mom’s and dad’s and have lunch today with them. * * * I don’t want to go.” ’
“[Reddish] said, ‘Well, Mike, why? This is Thanksgiving.’
“Cooley further testified that, back in 1968, when Patrick was eighteen-years-old, he had come out of the movie theater after seeing ‘Wild in the Streets’ and said to Cooley, “Yeah, I believe that. Everybody over 30 years old needs to be put in a pen. Yeah, if they don’t want to be put in a pen, they should be confined to a concentration camp.’ ” (Footnote omitted.) Id.,
In reviewing the district court’s decision to admit these statements, the court examined its previous decisions, including Phelps, dealing with the propriety of statements allegedly showing employer bias, and explained: .
“ * * * Patrick is the ultimate decision maker at Carmike, and Cooley had the burden to prove by the preponderance of the evidence that Patrick’s resentful comments against the aged were not vague, ambiguous, or isolated. Although those two quoted comments were not made in the context of Cooley’s termination, and they had been made a long time before he was dismissed, they do help to reveal Patrick’s state of mind and reflect a deep-rooted, ongoing pattern that is anything but isolated.” (Emphasis added.) Id.,
Thus, even the single federal circuit cited throughout the entire lead opinion allows a finding of discrimination to be based on temporally remote general comments made outside the context of plaintiffs termination. In other words, the lead opinion relies exclusively on a case from a jurisdiction that has permitted the very so-called toothpaste tube theory which the lead opinion rejects.
In addition, the lead opinion seems singularly impressed with the trial court’s determination that “98 percent of the evidence in the record doesn’t have anything to do with age discrimination.” I do not claim to have tested the mathematical accuracy of this determination, but I am not aware of any age or other invidious discrimination claim that has been decided on the basis of such a percentage. Moreover, under the direct evidence standard proposed in the lead opinion, the statement “I fired plaintiff on account of his age” would (and in fact is just about the only statement that could) suffice to prove age discrimination. This single statement, had it been uttered by McLernon, would constitute considerably less than the two percent of evidence that so troubles the lead opinion. Regardless, whether the evidence of McLernon’s ongoing, deep-rooted, repeated expressions of bias and intent to discriminate against the aged worker constitute two percent, ten percent, or some other percentage of the evidence in the record, it certainly amounts to substantially more and better-quality evidence than is generally considered sufficient to permit an inference of discrimination.
Thus, not only does the lead opinion’s direct evidence standard, couched as it is in causative language, directly contravene Mauzy and the United States Supreme
None of the foregoing, however, should be construed as an outright rejection of the application of principles of causation to an age discrimination case. Properly construed and applied, a legal standard of causation can be helpful in determining whether age was a motivating factor in an employment decision. The ultimate question in these cases is whether the plaintiff was “discharged on account of age.” Kohmescher, supra,
Accordingly, R.C. 4112.02 and 4112.14 are not designed in furtherance of a state policy to prohibit mere prejudice. Prejudice is simply an irrational opinion or attitude of hostility directed against a group or class of people or their supposed characteristics. See Webster’s Ninth New Collegiate Dictionary (1988) 928. Regardless of how distasteful or unsupported, prejudice is mere thought which, even if expressed, is not illegal. What these statutes prohibit is discrimination, i.e., prejudice in action. An employer is free to believe whatever he or she wishes about protected groups or classes in society, so long as those beliefs do not influence his or her employment decisions.
Accordingly, no derogation of the statutes results from the imposition of a standard that requires a connection (or link or nexus) between the employer’s negative beliefs about a particular group or class in society and the challenged employment action. In fact, when the plaintiffs evidence consists primarily of the employer’s expressions of discriminatory animus, it is helpful to restate the ultimate issue in these terms. In this way, we can ensure that liability is not premised solely upon the employer’s political or social beliefs about a protected class, but is instead properly based on whether those beliefs were actually brought to bear on employment decisions. This serves to facilitate the process of determining whether liability was based on prejudice or discrimination.
However, there is a critical distinction between stating, in causative terms, the requirement that plaintiff demonstrate that he or she was discharged on account of age and requiring that to do so the plaintiff must produce the type of evidence that directly proves discrimination without the aid of an inference. Indeed, it is mere trickery to require the plaintiff to produce direct evidence of discrimination in order to satisfy a causative standard which restates a standard under which
These principles were aptly stated as follows in Stacks v. Southwestern Bell Yellow Pages, Inc. (C.A.8,1993),
“We use this term [‘demonstrate’] advisedly, in order to avoid the ‘thicket’ created by some courts’ use of the term ‘direct evidence’ to describe the plaintiffs initial burden of proof in a Price Waterhouse case. See, e.g., Tyler v. Bethlehem Steel Corp.,
‘We do not believe that our decision in Beshears v. Asbill,
The lead and concurring opinions are potentially a disdainful epitaph to Mauzy. Our brothers and sisters below will no doubt shake their heads in consternation at the precarious force of our mandates. In evaluating circumstantial evidence in an age discrimination case, trial courts are now invited to flip the Mauzy/Bymes coin. They will query: Do we phrase the question in causative terms and require
The decision of the court of appeals should be affirmed.
Notes
. The reference to the court of appeals’ adoption of a “ ‘toothpaste tube’ theory” is misleading and derogatory. By making what is essentially an analogy appear as a colloquial term for a rule of law, the lead opinion is able to slight the court of appeals for establishing a legal rule that purportedly has no basis in law. But, see, Cooley, supra. The truth is that the court of appeals used the term simply to Alústrate the facts of the case as described by the plaintiffs-appellees. The court explained:
“On this appeal, Mr. Otto and Mr. Byrnes assert that they should be permitted to recover if they demonstrate the existence of a pattern of hiring and firing by LCI in which LCI hired older, experienced management employees; acquired the benefit of their knowledge and experience; and then discarded the employees once their knowledge and experience had been assimAated into the company. The analogy used is to buying a full tube of toothpaste, squeezing the contents from the tube, then throwing the tube away once the tube has served its purpose.” (Emphasis added.)
. The lead opinion cites Phelps in support of the proposition that “comments which are isolated, ambiguous or abstract, or made in reference to totally unrelated employee categories cannot support a finding of age discrimination against employees in a wholly different classification.” By way of clarification, Phelps, supra,
Concurrence Opinion
concurring. I concur in the judgment. In doing so, I continue to subscribe to our holding in Mauzy v. Kelly Services, Inc. (1996),
My concurrence herein is based specifically on the fact that the fourth prong of the test established in Barker v. Scovill, Inc. (1983),
In concurring, I am not unmindful of the “direct evidence” standard as so well set forth in the dissent of Justice Resnick. I believe the standard, where it can be shown to exist, still lives.
Dissenting Opinion
dissenting. I believe that Justice Resnick’s dissenting opinion correctly articulates both what the law now is and what the requirements for proof should continue to be in age discrimination cases in Ohio. While I am sympathetic with the result achieved by the majority, I would have taken different steps to correct what appears to be an excessive jury award. This case was well and truly tried, the parties skillfully represented, and the operative law correctly stated to the jury by the trial judge. We should wring the passion out of the jury’s verdict by ordering remittitur on the general verdict and eliminating the punitive damages award. Instead, the majority has massaged and convoluted the law, rendering proof of an age discrimination case unrealistically difficult for persons who most need the law’s protection.
I am concerned that this area of the law is being further “developed” in a case where the plaintiffs are high-salaried, executive-level employees. That world, artificial to most working men and women who truly need the protection of antidiscriminatory legislation, now yields a standard of proof which does not fit the real workplace world. Because we are uncomfortable seeing a jury award $7.1 million to two highly compensated executives who gladly, and knowingly, swam with sharks, we raise the bar on proof for others. This case makes age discrimination harder to prove and thus impractical for lower level, lower paid, less educated employees, who do not have the resources to pursue an increasingly complicated and complex claim. Older employees at the bottom of the economic ladder, unlawfully demoted or discharged because of their age, and without a golden parachute to cushion their fall (or to finance their litigation), are the Ohioans the majority decision hurts most.