Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
AL ., A PPELLANTS .
[Cite as
Byrnes v. LCI Communications Holding Co
.,
motivated by discriminatory animus to act against employee not possible absent casual connection between employer’s discriminatory statements and employee—Discrimination against other employees, standing alone, is insufficient to prove employer also discriminated against plaintiff- employee on basis of age—Establishing primia facie case of age discrimination under R.C. 4112.02 or 4112.14.
(No. 95-1222—Submitted May 22, 1996—Decided December 11, 1996.) A PPEAL from the Court of Appeals for Franklin County, Nos. 94APE09-1372 and
94APE09-1396. __________________
In 1988, Lawrence McLernon, then chief executive officer of defendant-appellant Litel Communications, Inc. (“LCI”; other defendants are affiliated corporations), recruited plaintiff-appellee Thomas J. Byrnes, age forty- eight, to become LCI’s president and chief operating officer. In his capacity as president, Byrnes was responsible for the inside operations of LCI and had direct supervision over sales, operations and computer projects. McLernon also recruited plaintiff-appellee Richard Otto, age fifty-six.
Otto began as a consultant for the company in 1985. In 1987, Otto became a full- time employee and was named vice president. He worked on special projects and reported to McLernon. He was placed in charge of an area designated as “standards and analysis,” and he began reporting directly to Byrnes.
{¶ 3} In 1990, LCI acquired Charter Network Company (“Charter”), and Otto was responsible for integrating the acquisition. There were problems with the acquisition, and Byrnes received complaints about Otto’s performance. As a result, Byrnes gave Otto an unsatisfactory rating for the third quarter of 1990, and he was not given a performance bonus for that period. After the Charter acquisition was completed, Otto was relieved of further responsibility for LCI’s acquisitions. Eventually, Byrnes eliminated Otto’s position and distributed his duties among other vice presidents. Byrnes told Otto that LCI no longer needed his services. Byrnes testified that his decision to terminate Otto had nothing to do with Otto’s age and that he tried to find another position for Otto during the latter half of 1990 but was unable to locate an available position. LCI announced Otto’s departure as retirement. Byrnes also received an unsatisfactory rating for the third quarter of
1990 and did not receive a performance bonus. He failed to meet all his performance objectives for 1990, and LCI failed to meet its budgeted revenues for the year. In early 1991, McLernon terminated Byrnes, age fifty-one. McLernon, who is older than Byrnes, assumed Byrnes’s duties. Otto received severance pay of one year’s salary. Byrnes was given
a severance package in accordance with the terms of his employment agreement. He returned home to his family in Ireland, where he eventually accepted a position as a university professor at about ten percent of his total 1990 compensation from LCI. In 1991, Byrnes and Otto filed this action against LCI alleging that
they had been discharged on the basis of their age in violation of R.C. 4112.02. At trial, several former LCI employees testified about McLernon’s attitude toward older employees. Priscilla Frasher was hired in 1984 as executive secretary for McLernon. Frasher, who was over age fifty when hired, was discharged shortly before her three-month probationary period ended. She testified that she was told by LCI’s chief financial officer, Larry Wolfe, that she had been terminated so that the company could hire a younger person at a lower salary. Former employee Daniel Lopez testified that during his initial
employment interviews in 1989, McLernon said he was displeased with LCI’s marketing organization and the only way to turn it around “was to bring in young, aggressive staff managers and change out the old folks.” McLernon stated that he “was looking for young risk-takers,” and he commented on the youthful marketing departments of LCI’s competitors, AT&T and MCI. On another occasion after Lopez had been hired, McLernon favorably commented on Lopez’s proposed reorganization of the marketing department because “some of the older folks there could no longer contribute” to the company. Lopez testified that later McLernon referred to an advertising manager as being “essentially over the hill” and “too old to grasp the concepts that he was looking for.” McLernon also referred to another terminated employee as being “too old and tired” for this business. Ed Florek, another former LCI executive, testified about a
conversation in 1985 with McLernon about wanting to create a sales associate program to hire very young, inexperienced associates to be teamed with older, more experienced persons to mentor them. McLernon’s reasoning was that “[t]hose old farts you hired aren’t going to be around forever.” Another LCI executive, John Janis, reportedly stated to Florek, “I don’t want old marathoners in my sales organization. I want young sprinters.” The only testimony to have possibly created an inference of age
discrimination toward these plaintiffs came from Byrnes, who testified that, during the problematic period of the Charter acquisition, he met with McLernon, who questioned whether Otto might be suffering from Alzheimer’s disease. Thereafter, McLernon repeatedly asked Byrnes what he intended to do about Otto’s future with LCI and began nagging him to terminate Otto. At the close of the plaintiffs’ case, the trial judge denied LCI’s
motions for directed verdicts despite his comment that “98 percent of the evidence in the record doesn’t have anything to do with age discrimination.” A jury rendered verdicts in favor of Byrnes and Otto and awarded them damages in the form of back pay, front pay, and punitive damages, totaling approximately $7.1 million. LCI filed post-trial motions seeking judgment notwithstanding the verdict, and a new trial or remittitur on the basis that the plaintiffs had not produced sufficient evidence that age had been considered by LCI in terminating Otto or Byrnes. The court denied the motions and also awarded plaintiffs-appellees additional sums for stock rights each would have received but for their terminations, and for attorney fees. The court of appeals affirmed the trial court in all respects except for its denial of prejudgment interest. The court concluded that the evidence demonstrated a pattern whereby LCI hired older, experienced management employees for their knowledge and experience, then discarded them once their knowledge and experience had been assimilated into the company, a theory which the court of appeals analogized to squeezing the contents from a tube of toothpaste, then throwing the tube away, i.e. , the “toothpaste tube” theory of liability. The appellate court then remanded the matter with instructions to grant prejudgment interest. The cause is now before this court upon the allowance of a
discretionary appeal.
__________________
Russell A. Kelm, for appellees.
Jones, Day, Reavis & Pogue, Patrick F. McCartan, Glen D. Nager and Steven T. Catlett, for appellants.
Stewar, Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging affirmance for amicus curiae , Ohio AFL-CIO.
Murray & Murray Co., L.P.A., Dennis E. Murray, Jr. and Patrick G. Warner, urging affirmance for amicus curiae , Ohio Academy of Trial Lawyers.
Spater, Gittes, Schulte & Kolman, Frederick M. Gittes, Kathaleen B. Schulte and Louis A. Jacobs, urging affirmance for amici curiae , Ohio Chapter of the National Organization for Women, 9To5 National Association of Working Women, Police Officers for Equal Rights, Stonewall Union, Ohio Now Education and Legal Fund, National Association for the Advancement of Colored People, Columbus Chapter, the Ohio Civil Rights Coalition, and the Ohio Employment Lawyers Association.
Betty D. Montgomery, Attorney General, and Jeffrey S. Sutton, State Solicitor, urging reversal on the issue of punitive damages for amicus curiae, Ohio Attorney General.
Jonathan A. Allison, urging reversal for amicus curiae , the Ohio Chamber of Commerce.
__________________ TRATTON , J. 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), 75 Ohio St.3d 578, 664
N.E.2d 1272, this court clarified the methods for establishing a prima facie case of
age discrimination under R.C. 4112.14. The methods are the same for R.C.
4112.02, at issue here. Discriminatory intent may be established indirectly by the
four-part analysis set forth in
Barker v. Scovill, Inc
. (1983),
age discrimination, which is evidence other than the four-part demonstration of
Barker
.
Kohmescher v. Kroger Co.
(1991),
{¶ 18} 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,
called the “toothpaste tube” theory by the court of appeals, has no basis in law. The
ultimate inquiry in an age discrimination case is whether a plaintiff-employee was
discharged on account of age.
Kohmescher v. Kroger Co.
(1991), 61 Ohio St.3d
501, 505, 575 N.E.2d 439, 442. Age-related comments referring directly to the
worker may support an inference of age discrimination. However, 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. See
Phelps v. Yale Security, Inc
.
(C.A.6, 1993),
{¶ 24}
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), 6
Ohio St.3d 146, 6 OBR 202,
Judgment reversed.
M OYER , C.J., and C OOK , J., concur.
D OUGLAS and F.E. WEENEY , JJ., concur in the judgment.
R ESNICK and P FEIFER , JJ., dissent separately.
__________________
D OUGLAS , J., concurring.
I concur in the judgment. In doing so, I continue to subscribe to our
holding in
Mauzy v. Kelly Services, Inc.
(1996),
fourth prong of the test established in Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, is absent in this case, to wit, that plaintiffs- appellees were not replaced by a person or persons not belonging to the protected class. Plaintiffs-appellees were, in fact, not replaced at all. 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.
S F.E. WEENEY , J., concurs in the foregoing concurring opinion.
__________________
A LICE R OBIE R ESNICK , J., 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 content 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),
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), 6 Ohio
St.3d 146, 6 OBR 202,
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.” 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),
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
,
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
Teamsters v. United States
,
direct evidence of discriminatory intent” in order to prevail.
Id
.,
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
., 460 U.S. at
713-714, 103 S.Ct. at 1481,
“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
,
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 naiveté 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 Barker ’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
where direct evidence of age discrimination is presented.’ The court found,
however, that Mauzy failed to present such direct evidence of age discrimination.
In so finding, the court relied on the definition of ‘direct evidence’ as set forth in
Black’s Law Dictionary (5 Ed.1979) 414: ‘Evidence that directly proves a fact,
without an inference or presumption, and which in itself, if true, conclusively
establishes that fact.’ The court of appeals then reasoned that ‘[a]s a result,
appellants were required to present a prima facie case of discrimination by proving
the four elements set forth in the syllabus of
Kohmescher
.’”
Mauzy, supra
, 75 Ohio
St.3d at 581,
“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
“amount[ing] 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.
“*** Clearly, 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.
,
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 beloning
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 case, we
cannot require Byrnes and Otto to prove that they were replaced by a person not
belonging to the protected class without directly contravening
Mauz
y. 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 “allow[s] the plaintiff to raise an inference of
discriminatory intent indirectly [by] serv[ing] to eliminate [one of] the most
common nondiscriminatory reasons for the employer’s action.”
Mauzy, supra
, 75
Ohio St.3d at 583,
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,
[1]
comments about “older workers in
general” may indeed support an inference of age discrimination. Comments about
entire groups or classes in society, particularly when directed at the desirability of
employing them and their ability to work, are the very stuff of individual disparate-
treatment cases. In fact, even courts which require direct evidence of
discrimination to shift the burden of persuasion in a
Price Waterhouse v. Hopkins
(1989),
“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 assimilated 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.) (C.A.11, 1985), 750 F.2d 867, 874, 876. Even a cursory review of these cases reveals a myriad of comments which clearly support an inference of discrimination, despite the fact that they do not refer directly to the plaintiff-worker. 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 , 25 F.3d at 1331, the court, in considering two ageist comments made by the employer outside the employment context about older people in general, stated that “[a]lthough those two quoted comments were not made in the context of [plaintiff’s] termination, *** they do help to reveal [the decisionmaker’s] state of mind and reflect a deep-rooted, ongoing pattern that is anything but isolated.” (Emphasis added.) 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.
,
employment decision is permissible from general discriminatory comments, despite the fact that the comments “do not directly relate to the challenged employment decision,” “were not made in the context of [plaintiff’s] termination,” or were “not made during the decisional process” at issue. Accordingly, the fact that McLernon’s “remarks did not relate to Byrnes and Otto or the decisions to terminate their employment” does not preclude an inference of age discrimination. 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), 879
F.2d 43, 54. There is no more reason to think that an employer’s discriminatory
attitudes necessarily differ from one group of employees to another than “[t]here is
*** reason to think those attitudes differ from hiring to promotion.”
Equal Emp.
Opportunity Comm. v. Alton Packaging Corp.
(C.A.11, 1990),
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.”
Discrimination law is “[l]ike the common law of torts,” in part
because legal liability is conditioned “on a determination that the consideration of
an illegitimate factor
caused
a tangible employment injury of some kind.”
(Emphasis
sic
.)
Price Waterhouse, supra
,
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), 831 F.2d 690, 698-699, pointedly explained:
“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),
of its critical conclusions is
Phelps, supra,
986 F.2d at 1025.
[2]
Subsequent to
2. 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
,
Phelps , however, the Sixth Circuit Court of Appeals decided Cooley, supra . The court set forth the following pertinent facts:
“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.’ “And [Patrick’s] words were, “‘Well, my grandmother is over there, and I just don’t want to be—I don’t like to be around old people.”’
“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.
,
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.
,
{¶ 66} 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 plaintiff’s 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 Court holdings, but its foundational assumptions are fallacious and actually contravene its own authority. 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
, 61 Ohio St.3d at 505,
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 plaintiff’s 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 direct evidence is not required. Evidence of clear discriminatory statements made by a decisionmaker or company policymaker, like any other evidence, need not prove discrimination directly, without the aid of an inference, in order to support a finding of discrimination. Thus, evidence that a decisionmaker made discriminatory comments may support a finding of discrimination, even though an inference is required to connect the employer’s state of mind expressed thereby to the challenged employment decision. In short, a discriminatory statement may constitute circumstantial evidence that a discriminatory motive was a factor in the decisional process at issue. 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 plaintiff’s initial burden of proof in a Price Waterhouse case. See , e.g. , Tyler v. Bethlehem Steel Corp. , 958 F.2d 1176, 1183-85 (2d Cir.1992) (describing use of the term ‘direct evidence’ as ‘unfortunate’). We conclude that there is no restriction on the type of evidence a plaintiff may produce to demonstrate that an illegitimate criterion was a motivating factor in the challenged employment decision. The plaintiff need only present evidence, be it direct or circumstantial, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the challenged decision.
“We do not believe that our decision in
Beshears v. Asbill
,
__________________
P FEIFER , J., 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.
__________________