174 Ohio App. 3d 339 | Ohio Ct. App. | 2007
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{¶ 1} Defendant-appellant United Parcel Service, Inc. ("UPS") appeals the judgment of the trial court entered on a jury's verdict in favor of plaintiff-appellee Robert Meyer on his claims for age discrimination under R.C.
{¶ 2} In its nine assignments of error, UPS argues that (1) Meyer's age-discrimination claim was barred by the statute of limitations and because it had been previously arbitrated, (2) the trial court improperly permitted a jury trial on Meyer's retaliatory-discharge claim, (3) the court erred in denying its motions for summary judgment and for a directed verdict on these claims, (4) the court erred in instructing the jury and in admitting various testimony at trial, and (5) the court erred in awarding prejudgment interest to Meyer. Because Meyer was not entitled to a jury trial on his retaliatory-discharge claim, and because this error tainted the jury's verdicts, we reverse that portion of the trial court's judgment entered on those verdicts.
{¶ 4} In 2002, James Murray became business manager of the Colerain facility where Meyer worked. UPS was self-insured for purposes of paying workers' *344 compensation benefits to its employees. UPS set aside its own funds to pay the medical costs and lost wages of its employees injured on the job. Meyer's division manager received reports detailing the costs of employee workers' compensation claims. The manager discussed those costs with individuals in UPS's finance department, which provided a workers'-compensation budget for each division. Thus a division's profitability was adversely affected when claims exceeded the budgeted amount.
{¶ 5} In August 2002, Meyer sustained a workplace-related injury that required him to miss work. When he returned to work, Meyer met with Murray. During that meeting, Meyer alleged, Murray told him, "If [Meyer] wanted to make [his] last five years at UPS, that [he had] better not get hurt." UPS acknowledged only that it had simply admonished Meyer to be careful and to follow its methods and procedures at all times.
{¶ 6} In November 2002, Meyer suffered another workplace-related injury, an inguinal hernia. The injury required two surgeries to repair. Meyer filed a claim for workers' compensation benefits and missed nearly two months of work.
{¶ 7} In late January 2003, Meyer returned to work. Three weeks later, UPS discharged Meyer without warning. While UPS's various agreements with Meyer's collective-bargaining unit generally provided for progressive discipline, UPS could discharge an employee, without warning, for dishonesty and "other serious offenses." Other drivers had alleged that Meyer had intentionally inflated the miles he had driven on his route. Meyer filed a grievance, and after a hearing, UPS's discipline was reduced to a suspension.
{¶ 8} When Meyer returned to work, he met with Murray. Murray reviewed a document that listed Meyer's workplace-injury history and again emphasized that his continued employment was related to not sustaining any further workplace injuries.
{¶ 9} In September 2003, UPS again discharged Meyer without warning based upon a customer's complaint that Meyer had driven too fast in the customer's parking lot, had thrown boxes off the back of the truck, and had made inappropriate sexually explicit statements. After recourse to the grievance procedure, Meyer was again reinstated after serving a suspension.
{¶ 10} Two months later, Meyer returned to work. He was assigned to a different route that included frequent deliveries of heavy packages. Meyer's immediate supervisor rode with him on the first day and provided training on UPS's new wireless computer system, called "DIAD," which is used to record pickups and deliveries of packages. Even with the supervisor's assistance, Meyer completed the route over one and one-half hours late. *345
{¶ 11} The following day, Murray warned Meyer that he was too slow and that he should be concerned for his job. Meyer's request for additional DIAD training was denied. Meyer had difficulty completing the route and difficulty using DIAD. He also sustained a serious groin injury during the day. Meyer filed for workers' compensation benefits and missed four weeks of work. UPS's security investigators uncovered serious discrepancies in the DIAD record, including one record showing that Meyer had made eight customer stops in a three-minute period.
{¶ 12} On December 3, 2003, the day that Meyer returned to work, UPS discharged him for dishonesty based on what UPS perceived as fraudulent entries on the DIAD system. Meyer again filed a grievance. But this time the discharge was upheld.
{¶ 13} Meyer brought this action for workers' compensation retaliation and age discrimination. Meyer contended that his termination was motivated by retaliation for his filing claims for workers' compensation benefits and by his age. Meyer sought reinstatement to his previous position or, in the alternative, an award of front pay as well as back pay, other compensatory damages, punitive damages, and reasonable attorney fees and costs.
{¶ 14} The case proceeded to a jury trial, and after six days of testimony and deliberations, the jury answered special interrogatories and found in favor of Meyer on both claims. The jury awarded damages of $113,352 to Meyer for back pay under the retaliatory-discharge claim, and damages of $113,352 for back pay, $175,000 for "other damages," and $25,000 in punitive damages on his age-discrimination claim. The trial court entered judgment on the verdicts, awarding only one recovery for back pay, but otherwise adding $47,616.03 in prejudgment interest and $135,194.45 in attorney fees and costs. The trial court also ordered Meyer reinstated to his position at UPS and imposed postjudgment interest.
{¶ 15} This appeal ensued. In September 2006, UPS executed a supersedeas bond in the amount of $744,590, and this court granted a stay of execution of the judgment.
{¶ 17} UPS first argues that since Meyer had brought his R.C.
{¶ 18} UPS contends that Meyer's claim was premised upon R.C.
{¶ 19} UPS's argument that Meyer's age-discrimination claim was barred by the statute of limitations was first raised as an affirmative defense in its answer to the amended complaint.1 While ordinarily a statute-of-limitations issue would be resolved by a Civ. R. 12 motion or by a motion for summary judgment, UPS advanced this argument principally in its motion for a directed verdict. A directed verdict is properly granted when "the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party * * *."2 Thus, a motion for a directed verdict assesses the sufficiency of the evidence, not the weight of the evidence or the credibility of the witnesses.3 An appellate court reviews a trial court's ruling on a motion for a directed verdict de novo, as it presents a question of law.4
{¶ 20} UPS filed its directed-verdict motion on August 3, 2006, after the jury trial had already begun. But because the resolution of this portion of the assignment of error raises primarily a legal question not dependent on any evidence adduced at trial, we answer the assignment of error as presented. *347
{¶ 21} An action for age discrimination in employment can be maintained under four different statutes within R.C. Chapter
{¶ 22} Second, R.C.
{¶ 23} Third, R.C.
{¶ 24} Recently, in Leininger v. PioneerNatl. Latex, the Ohio Supreme Court held that Ohio does not recognize a common-law tort claim for wrongful discharge based on the public policy against age discrimination, "because the remedies in R.C. Chapter
{¶ 25} Because the undisputed evidence produced before trial indicated that Meyer had brought his R.C.
{¶ 26} UPS next argues that the trial court erred in permitting Meyer to advance his age-discrimination claim despite having had his discharge previously upheld in arbitration. UPS relies on this court's decision in Hopkinsv. United Parcel Serv., in which we interpreted R.C.
{¶ 27} UPS raised this issue both in its motion for summary judgment and in its directed-verdict motion. Because summary judgment presents only questions of law, an appellate court reviews the entry of summary judgment de novo, without deference to the trial court's determinations.17 Summary judgment is proper pursuant to Civ. R. 56(C) when (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and with the evidence viewed most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.18
{¶ 28} It is undisputed that Meyer contested his discharge in the grievance procedure established for employees at UPS. This grievance procedure was the functional equivalent of arbitration.19 But UPS's reliance on the holding ofHopkins is misplaced. In that case, we interpreted a version of R.C.
{¶ 29} At all times pertinent to this case, however, R.C.
{¶ 30} Thus Hopkins is not applicable, and Meyer's R.C.
{¶ 31} The first assignment of error is overruled.
{¶ 33} We find merit in UPS's first contention. When Meyer first brought suit against UPS, he asserted two claims for relief. He alleged that he had been wrongfully terminated by UPS for filing workers' compensation claims, in violation of his rights under R.C.
{¶ 34} In July 2004, UPS moved to dismiss both claims. Meyer contested the motion with respect to the statutory claim, but admitted that UPS was "on firmer ground" in moving to dismiss the public-policy claim, because Meyer had been part of an employee bargaining unit. On September 10, 2004, the trial court dismissed Meyer's public-policy claim.
{¶ 35} In October 2004, UPS moved to strike Meyer's jury demand for his statutory retaliation claim and his requests for compensatory and punitive damages and for attorney fees. Because "R.C.
{¶ 36} Six months later, Meyer sought and obtained leave to amend his complaint to add a claim of age discrimination under R.C.
{¶ 37} R.C.
{¶ 38} An aggrieved employee may also pursue a retaliatory-discharge claim based on a violation of the public policy identified in R.C.
{¶ 39} But Meyer's claim for relief under R.C.
{¶ 40} Meyer's contention that UPS waived this error because it had not requested that the trial court enter findings of fact and conclusions of law on the R.C.
{¶ 41} UPS now argues that the trial court's error in permitting a jury trial on the R.C.
{¶ 42} Determining the precise effect of the error on the trial court's judgment and the jury's other verdict is problematic. While the trial court denied UPS's motion for a directed verdict on Meyer's R.C.
{¶ 43} More troublesome is the impact that presentation of the workers' compensation retaliation claim had on the jury's verdict for the age-discrimination claim under R.C.
{¶ 44} Frequently, in cases where a statutory claim has been joined with a public-policy retaliation claim, the jury is entitled to hear evidence common to both retaliation claims.29 But here, where only a statutory claim remained to be tried with the age-discrimination claim, the amount of evidence of workers' compensation retaliation admitted and the proper purposes for its admission *353 would have been more narrowly circumscribed. For example, the jury might have been permitted to hear evidence of retaliation against Meyer offered to demonstrate that UPS's proffered reason for terminating Meyer — his dishonesty — was a pretext, and that he was actually terminated because of his age.30
{¶ 45} But in the case as presented to the jury, the evidence adduced at trial on the retaliatory-discharge claim and the age-discrimination claim presented a seamless web of facts. While Meyer moved for a bifurcation of the trial into liability and damages phases, he never sought to bifurcate the trial for his two claims of wrongful discharge.
{¶ 46} Meyer summarized his case in closing argument. He argued to the jury that UPS "wanted to fire [Meyer]. And they wanted to fire him because he was costing the company too much money. He was old. He was breaking down and as far as they were concerned, he was a liability." Meyer's remarks to the jury at the beginning of his closing argument, while not evidence themselves, were illustrative of the evidence presented at trial and reflected Meyer's theory of the case — that Meyer's filing workers' compensation claims and his age were inextricably linked, and that both claims stemmed from unlawful acts by UPS. In its charge to the jury, and in the special interrogatories, the trial court identified retaliatory discharge as an unlawful practice. And a question from the jury during its deliberations seeking clarification of whether the special interrogatories titled "Age Discrimination" "[we]re * * * all related only to age discrimination" further reflected the intermixing of the two claims. The impact on the jury of the evidence of workers' compensation retaliation, along with the arguments and the instructions given on that evidence, was so prejudicial that the jury's verdicts on both claims must be overturned.
{¶ 47} We note that UPS's second argument, that Meyer had no right to recover compensatory and punitive damages, is not well taken. The Ohio Supreme Court has held that a plaintiff like Meyer who asserts a claim of age discrimination under R.C.
{¶ 48} Therefore, that portion of the second assignment of error asserting that the trial court erred in permitting a jury trial on Meyer's claim for workers' compensation retaliation under R.C.
{¶ 50} Our resolution of UPS's second assignment of error renders moot that portion of the assignment of error that asks this court to assess the sufficiency of the evidence adduced at trial and to overturn the denial of UPS's motion for a directed verdict.34 But UPS's assertion that the trial court improperly denied its motion for summary judgment survives.
{¶ 51} In prosecuting its assignment of error, UPS has an obligation under the appellate rules to support its argument with citations to the record.35 But on appeal, UPS and Meyer have both supported their summary-judgment arguments, in virtually every instance, with references to the transcript of the subsequent trial proceedings.
{¶ 52} In supporting a motion for summary judgment, a party must conform to the restriction contained in Civ. R. 56(C) that "[n]o evidence or stipulation may be considered except as stated in this rule."36 In ruling on an *355 assignment of error dealing with the granting or the denial of a motion for summary judgment, this court must review the same evidentiary material provided to the trial court.37 Subsequent testimony from the trial is not to be considered in reviewing the trial court's ruling on a summary-judgment motion. We are cognizant that the same issues were tried to the jury, albeit improperly. Our resolution of the second assignment of error, however, precludes us from considering the testimony adduced at trial and precludes the application of the mootness doctrine enunciated in Continental Ins. Co. v.Whittington.38
{¶ 53} Considering only the material properly before the trial court at the time that it ruled on UPS's summary-judgment motion, we now resolve the assignment of error. Recently, in Young v. Stelter Brinck,Ltd., we described the burden-shifting approach used to analyze retaliatory-discharge claims.39 In this case, the initial burden of proof lay with Meyer to establish a prima facie case of retaliation. In a retaliatory-discharge case, this burden is not onerous. Meyer had to show that (1) he was injured on the job, (2) he filed a workers' compensation claim, and (3) there was a causal connection between his filing the workers' compensation claim and his termination.40
{¶ 54} If Meyer established a prima facie case, the burden would have then shifted to UPS to set forth a legitimate nonretaliatory reason for his discharge.41 If UPS could have articulated a nonretaliatory reason for Meyer's discharge, the burden would then have shifted back to Meyer to prove that the reason proffered by UPS was a pretext and that he was fired because he had pursued workers' compensation claims.42 *356
{¶ 55} It is undisputed that Meyer was injured on the job and that he had filed workers' compensation claims. But UPS asserts that it was entitled to summary judgment because no genuine issue of fact remained concerning whether there was a causal connection between the protected activity and Meyer's discharge.
{¶ 56} Construing the evidence most strongly in favor of Meyer, the nonmoving party, we are convinced that genuine issues of material fact remained to be determined concerning whether Meyer had been repeatedly threatened with termination for sustaining workplace injuries and filing workers' compensation claims. After more than 20 years of service without formal discipline, Meyer was terminated three times, all following his November 2002 filing of a workers' compensation claim. Meyer's deposition testimony recounted that immediately after returning to work from leave for compensable injuries, he was warned by Murray, the newly appointed business manager of UPS's Colerain facility, that if Meyer wanted to reach retirement, he should stop getting injured; that he was terminated within one month after returning from a compensable-injury leave in February 2003; and that in December 2003, UPS terminated his employment less than one month after he had filed a workers' compensation claim and on the same day that he returned to work.
{¶ 57} By demonstrating UPS's threats of termination43 and a temporal proximity between his filing the workers' compensation claims and his discharges, Meyer created an inference of a causal connection between his workers' compensation claims and his termination. Meyer established a prima facie case of retaliatory discharge.44 And genuine issues of material fact remained concerning whether UPS's proffered justification for Meyer's discharge was a pretext for retaliation. The trial court properly denied summary judgment.
{¶ 58} The fifth assignment of error is overruled.
{¶ 60} R.C. Chapter
{¶ 61} Again, the employee's burden is not an onerous one. The "ultimate inquiry [in an age-discrimination case is] whether evidence of age discrimination is present."46 The Ohio Supreme Court has underscored that the law does not require a "rigid, mechanized, or ritualistic" exercise to make out a prima facie case for discrimination.47
{¶ 62} Absent direct evidence of age discrimination, to establish a prima facie case of age discrimination in employment discharge, a plaintiff "must demonstrate that he or she (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age."48
{¶ 63} If a plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the plaintiffs discharge.49 Should the employer carry this burden, the plaintiff must then demonstrate that the reason the employer has offered is not its true reason, but is merely a pretext for discrimination.50
{¶ 64} UPS concedes that Meyer established the first two elements of his discrimination claim and challenges only the latter two elements: whether Meyer was qualified for his position, and whether he was replaced by, or his discharge permitted the retention of, a substantially younger person.
{¶ 65} Construing the evidence most strongly in favor of Meyer, we hold that genuine issues of material fact remained to preclude the entry of summary judgment. Meyer had over 24 years of experience performing his assigned tasks *358 for UPS without serious disciplinary problems. After Meyer had returned from a two-month injury leave, UPS disciplined Meyer on his second day at work. Genuine issues remained concerning whether Meyer was provided with sufficient training on his new route and whether he had been given training on a new computer system. Meyer had been replaced by a 23- or 24-year-old employee. In light of comments made by Meyer's managers to others regarding Meyer's veteran status at UPS and the advantages of terminating older employees, Meyer established a prima facie case of age discrimination, and genuine issues of material fact remained concerning whether UPS's proffered justification for Meyer's discharge was a pretext.
{¶ 66} The trial court properly denied summary judgment. The fourth assignment of error is overruled.
{¶ 68} UPS's ninth assignment of error, that the trial court erred in awarding prejudgment interest, is sustained but only on the basis that without a valid judgment in his favor on the merits "for the payment of money rendered in a civil action," Meyer was not entitled to prejudgment interest.52
Judgment reversed and cause remanded.
SUNDERMANN, P.J., and HENDON, J., concur.
