The opinion
[This opinion has been published in Ohio Official Reports at 77 Ohio St.3d 125.]
BYRNES ET AL., APPELLEES, v. LCI COMMUNICATIONS HOLDINGS COMPANY ET
AL., APPELLANTS.
[Cite as Byrnes v. LCI Communications Holding Co., 1996-Ohio-307.]
Age discrimination—Employment discharge action—Inference that employer was
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.)
APPEAL from the Court of Appeals for Franklin County, Nos. 94APE09-1372 and
94APE09-1396.
__________________
{¶ 1} 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.
{¶ 2} 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.
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{¶ 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.
{¶ 4} 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.
{¶ 5} 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.
{¶ 6} 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
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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.
{¶ 7} 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.
{¶ 8} 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.”
{¶ 9} 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.
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{¶ 10} 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.
{¶ 11} 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.
{¶ 12} 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.
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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.
__________________
STRATTON, J.
{¶ 13} 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.
{¶ 14} 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
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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.
{¶ 15} 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), 6 Ohio St.3d 146, 6
OBR 202, 451 N.E.2d 807, adopted from the standards established in McDonnell
Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. The
Barker analysis requires that the plaintiff-employee demonstrate “(1) that he was a
member of the statutorily-protected class, (2) that he was discharged, (3) that he
was qualified for the position, and (4) that he was replaced by, or that his discharge
permitted the retention of, a person not belonging to the protected class.” Id.,
paragraph one of syllabus.
{¶ 16} 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), 61 Ohio St.3d 501, 575 N.E.2d 439. 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.
Mauzy, 75 Ohio St.3d 578, 664 N.E.2d 1272, paragraph one of the syllabus.
{¶ 17} 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’
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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.
{¶ 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.
{¶ 19} 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.
{¶ 20} 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.
{¶ 21} 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.
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{¶ 22} 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), 986 F.2d 1020, 1025. There must be a link or nexus between the
discriminatory statement or conduct and the prohibited act of discrimination to
establish a violation of the statute. In Kohmescher, there was a memorandum which
recommended that the plaintiff be selected for Kroger’s reduction in workforce
because he was “eligible for [the] retirement window.” Here, at best, plaintiffs have
an isolated comment by McLernon suggesting one of the plaintiffs, Otto, might
have Alzheimer’s disease. Perhaps McLernon was truly concerned about Otto’s
status; more likely, he made a joke in poor taste. However insensitive and
intemperate these remarks were, they were not tied in time or fact to either Byrnes’s
or Otto’s terminations. Consequently, they are simply insufficient to support the
jury’s findings that these plaintiffs were discharged on account of their age.
{¶ 23} 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
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whether this employee was discharged because of his age. The evidence here
clearly does not support such a causal link or nexus.
{¶ 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, 451 N.E.2d 807, an employee must prove a causal link
or nexus between evidence of a discriminatory statement or conduct and the
prohibited act of discrimination to establish a violation. The judgment of the court
of appeals is reversed. Based upon our finding of insufficient evidence to sustain
the verdicts for plaintiffs-appellees, we need not reach the issue of the propriety of
damages.
Judgment reversed.
MOYER, C.J., and COOK, J., concur.
DOUGLAS and F.E. SWEENEY, JJ., concur in the judgment.
RESNICK and PFEIFER, JJ., dissent separately.
__________________
DOUGLAS, J., concurring.
{¶ 25} I concur in the judgment. In doing so, I continue to subscribe to our
holding in Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d
1272.
{¶ 26} My concurrence herein is based specifically on the fact that the
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.
{¶ 27} 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.
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F.E. SWEENEY, J., concurs in the foregoing concurring opinion.
__________________
ALICE ROBIE RESNICK, J., dissenting.
{¶ 28} 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), 75 Ohio St.3d 578, 664 N.E.2d 1272. Thus,
the lead and concurring opinions, albeit separate and without the force of law at
present, lie in wait for the next opportunity to join forces and ambush the holding
of Mauzy.
{¶ 29} 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), 6 Ohio
St.3d 146, 6 OBR 202, 451 N.E.2d 807, at the syllabus, or produce direct evidence
of discrimination in the hornbook sense, i.e, evidence that directly proves
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discrimination without an inference. In the final analysis, these three justices favor
a formula under which direct and circumstantial evidence is dichotomized, and
which would provide that the only way a plaintiff could prove age discrimination
by circumstantial evidence is to satisfy each of the four discrete elements specified
in the Barker prima facie test.
{¶ 30} 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.” 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.
{¶ 31} 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), 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403, 409.
The prima facie case is but the first of three stages dealing with the process of
allocating the burdens and order of presentation of proof in an age discrimination
case. Barker, supra; Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575
N.E.2d 439; McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93
S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677-678. Once the paradigm runs its course,
each burden thereunder “merges with the ultimate burden of persuading the [jury]
that [plaintiffs have been] the victim[s] of intentional discrimination.” Texas Dept.
of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 101 S.Ct. 1089, 1095,
67 L.Ed.2d 207, 217. At this point, it is no longer relevant how or even whether
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plaintiffs succeeded initially in establishing a prima facie case. Aikens, supra, 460
U.S. at 715, 103 S.Ct. at 1481-1482, 75 L.Ed.2d at 410.
{¶ 32} The only relevant question at this point is whether the defendant
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, 460 U.S. at 715-716, 103 S.Ct. at 1482, 75 L.Ed.2d at
410. “[T]rial courts or reviewing courts should [not] treat discrimination differently
from other ultimate questions of fact. Nor should they make their inquiry even
more difficult by applying legal rules which were devised to govern ‘the basic
allocation of burdens and order of presentation of proof,’ in deciding this ultimate
question.” (Citation omitted.) Id., 460 U.S. at 716, 103 S.Ct. at 1482, 75 L.Ed.2d
at 411. Thus, it is clearly erroneous to now “focus[] on the question of prima facie
case rather than directly on the question of discrimination.” Id., 460 U.S. at 717,
103 S.Ct. at 1483, 75 L.Ed.2d at 411.
{¶ 33} 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.
{¶ 34} 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), 491 U.S. 164, 187, 109
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S.Ct. 2363, 2378, 105 L.Ed.2d 132, 157. The high court has clearly and specifically
explained:
“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, 431 U.S. 324,
358, n. 44 [97 S.Ct. 1843, 1866, 52 L.Ed.2d 396, 429] (1977) (‘[T]he McDonnell
Douglas formula does not require direct proof of discrimination.’).” Aikens, supra,
460 U.S. at 714, 103 S.Ct. at 1481, 75 L.Ed.2d at 409, fn. 3.
{¶ 35} Thus, it would also be erroneous to require plaintiffs “to submit
direct evidence of discriminatory intent” in order to prevail. Id., 460 U.S. at 717,
103 S.Ct. at 1483, 75 L.Ed.2d at 411.
{¶ 36} 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., 460 U.S. at
713-714, 103 S.Ct. at 1481, 75 L.Ed.2d 409, fn. 2 and 3. The only question, if
indeed there is one, is whether McLernon’s statements were vague, ambiguous or
isolated. See Cooley v. Carmike Cinemas, Inc. (C.A.6, 1994), 25 F.3d 1325, 1331;
Phelps v. Yale Security, Inc. (C.A.6, 1993), 986 F.2d 1020, 1025. Certainly, they
were not isolated. They were repeated, ongoing for at least five years, and made
by a decisionmaker who, the evidence shows, played a part in both of the
terminations at issue. Nor is there anything vague or ambiguous about statements
indicative of a desire “to bring in young, aggressive staff managers and change out
the old folks,” or of a belief that “some of the older folks there could no longer
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contribute” to the company, or that a particular employee was “too old to grasp the
concepts that he was looking for” or “too old and tired” for the business, or the
statement that “I don’t want old marathoners in my sales organization. I want
young sprinters,” to mention a few.
{¶ 37} 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,
25 F.3d at 1331-1332; Estes v. Dick Smith Ford, Inc. (C.A.8, 1988), 856 F.2d 1097,
1102-1103; Hunter v. Allis-Chalmers Corp. (C.A.7, 1986), 797 F.2d 1417, 1423.
{¶ 38} 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), 61 Ohio St. 3d 259, 574 N.E.2d 492,
McLernon’s comments constitute circumstantial evidence of age discrimination
sufficient to support the jury’s verdict in this case. This conclusion is inescapable
unless some way can be found to artificially limit the plaintiffs to presenting
evidence of a certain type and, in particular, to require the plaintiffs to produce
direct evidence of discrimination in order to prevail. This is precisely what the lead
opinion seeks to accomplish today; and, in so doing, it runs headlong into Mauzy.
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{¶ 39} The lead begins by revisiting the requirements for and methods of
establishing a prima facie case of age discrimination. It observes, on the one hand,
that “[d]iscriminatory intent may be established indirect 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, “[d]iscriminatory 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 lead opinion concludes
that “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.” Thus,
plaintiffs must rely “upon the direct evidence standard” for establishing a prima
facie case.
{¶ 40} 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
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the actual termination of other minority workers, or even when they reflect an intent
to act in accordance therewith.
{¶ 41} 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.
{¶ 42} 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
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the four elements set forth in the syllabus of Kohmescher.’” Mauzy, supra, 75 Ohio
St.3d at 581, 664 N.E.2d at 1275.
{¶ 43} 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
“amount[ing] to a rendition of a dichotomy between ‘direct’ and ‘circumstantial’
evidence.” Mauzy, 75 Ohio St.3d at 583, 664 N.E.2d at 1277. Additionally, the
employer in Mauzy argued, as the lead opinion would hold today, that “a plaintiff
attempting to produce direct evidence to avoid application of the McDonnell
Douglas test cannot rely upon the presentation of merely circumstantial evidence.”
Id., 75 Ohio St.3d at 584, 664 N.E.2d at 1278. Similarly, the dissenting judge in
the court of appeals in the case sub judice(whose opinion was rendered prior to our
decision in Mauzy) argued as did the employer in 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.)
{¶ 44} 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
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method by which such an inference may be created.” Id., 75 Ohio St.3d at 584, 664
N.E.2d at 1277. Instead, “the four-element McDonnell Douglas prima facie test
comes into play ‘“absent direct, circumstantial, or statistical evidence of
discrimination.”’” (Emphasis sic.) Id., 75 Ohio St.3d at 584, 664 N.E.2d at 1278.
Thus, “[t]he caliber of evidence as ‘direct’ *** is [not] the sole alternative method
[to the Barker/McDonnell Douglas test] by which to create an inference of
discrimination.” Id., 75 Ohio St.3d at 586, 664 N.E.2d at 1279.
{¶ 45} 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.
{¶ 46} 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.
{¶ 47} 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 Mauzy. The
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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, 664 N.E.2d at 1277. The indelible core principle of Mauzy is
that where the plaintiff creates an inference “directly by presenting evidence, of any
nature, to show that an employer more likely than not was motivated by
discriminatory intent,” the McDonnell Douglas/Barker prima facie test simply does
not come into play. This means that where the plaintiff presents circumstantial
evidence of age discrimination other than the Barker formulation, as Byrnes and
Otto did in this case, none of Barker’s nonstatutory elements apply, particularly the
requirement that plaintiff prove that he or she was replaced by, or that his or her
discharge permitted the retention of, a person not belonging to the protected class.
“‘As in any lawsuit, the plaintiff may prove his case by direct or circumstantial
evidence.’” Mauzy, supra, 75 Ohio St.3d at 584, 664 N.E.2d at 1278, quoting
Aikens, supra, 460 U.S. at 714, 103 S.Ct. at 1481, 75 L.Ed 2d at 409, fn. 3.
{¶ 48} 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 plaintiff’s 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.
{¶ 49} 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
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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.”
{¶ 50} 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), 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268, “mixed motives” type of
case do not preclude expressions of discriminatory animus from serving this
function merely because they are general in nature. Thus, even “[d]irect evidence
of discrimination usually entails a general comment about a minority group in
society. The courts infer from such a remark that the defendant had discriminatory
animus toward the particular plaintiff in the particular job.” Milligan-Jensen v.
Michigan Technological Univ. (D.C.Mich.1991), 767 F.Supp. 1403, 1413, reversed
on other grounds (1992), 975 F.2d 302. See, also, Talley v. Bravo Pitino
Restaurant, Ltd. (C.A.6, 1995), 61 F.3d 1241, 1249; Stacks v. Southwestern Bell
Yellow Pages, Inc., (C.A. 8, 1993), 996 F.2d 200, at 202-203; Linn v. Andover
Newton Theological School, Inc. (C.A.1, 1989), 874 F.2d 1, 3-4; Sennello v. Res.
Life Ins. Co. (C.A.11, 1989), 872 F.2d 393, 394-395; Miles v. M.N.C. Corp.
1. 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 illustrate 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 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.)
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January Term, 1996
(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.
{¶ 51} 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.”
{¶ 52} 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), 997 F.2d 444, 449, the court explained:
“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.)
{¶ 53} 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.)
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{¶ 54} Similarly, in Stacks v. Southwestern Bell Yellow Pages, Inc. (C.A.8,
1994), 27 F.3d 1316, 1324, the court explained that:
“‘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., 997 F.2d 444, 449 (8th Cir.1993).
Hudson’s comment that ‘women were the worst thing’ that had happened to the
company, however, warrants such an inference, even though it was not made during
the decisional process.” (Emphasis added.)
{¶ 55} Thus, an inference of discrimination with regard to a particular
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.
{¶ 56} 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.
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January Term, 1996
{¶ 57} 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), 901 F.2d 920, 924,
fn. 6. If we allow the employer to pigeonhole its discriminatory statements in this
manner, we in effect remove the ultimate question of discrimination from the
province of the jury and hand it over to one of the parties.
{¶ 58} 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.”
{¶ 59} 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, 490 U.S. at 264-265, 109 S.Ct. at 1798,
104 L.Ed.2d at 297 (O’Connor, J., concurring). Under common-law tort principles,
temporal remoteness is not a bar to a finding of causal connection. See Prosser &
Keeton on Torts (5 Ed.1984) 283, Section 43; 2 Restatement of the Law 2d, Torts
(1965) 434, Section 433, Comment f.
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{¶ 60} 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), 779 F.2d 631, 635, quoting the trial court:
“‘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.’”
{¶ 61} 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.”
{¶ 62} 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), 45 Ohio St.2d 271, 275, 74 O.O.2d 427,
430, 344 N.E.2d 334, 338, the substance of the various statements reveals two
things about McLernon: (1) he harbored a bias toward older workers, and (2) his
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January Term, 1996
intent was to clear out older employees. The statements were made in 1984, 1985
and 1989. Otto was terminated at the end of 1990 and Byrnes in early 1991.
{¶ 63} The lead opinion would have us believe that although McLernon had
discriminatory animus toward the aged worker from 1984 through 1989, and at
times acted upon such an attitude, it is impermissible to infer that such deep-rooted,
ongoing bias against older workers persisted into early 1991. Yet there is nothing
to suggest that McLernon “might have learned something in the meantime” that
served to eviscerate his animus. Instead, the lead opinion appears to view verbal
expressions of prejudicial intent as though they are events which take place at
particular moments in time. Thus, the it is able to confine what is essentially
McLernon’s long-lasting and ongoing basic mental attitude or governing spirit to
particularly circumscribed periods of time corresponding to the dates of his
statements. However, I would have hoped that this court was a bit more
sophisticated than to conclude, as a matter of law, that repeated expressions of
discriminatory animus spanning a five-year period are but separate acts or
occurrences each with a clearly delineated beginning and end.
{¶ 64} Moreover, the only case cited by the lead opinion in support of any
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, 986 F.2d at 1025, does indeed explain that “isolated and ambiguous
comments ‘“are too abstract, in addition to being irrelevant and prejudicial, to support a finding of
age discrimination.”’” Also, in deference to the lead opinion, I would note that, even though not
referred to in the lead opinion, the court in Phelps concluded that “[b]ecause McCulloch made the
statements nearly a year before the layoff, the comments were made too long before the layoff to
have influenced the termination decision.” Id., 986 F.2d at 1026. However, Phelps made no
mention of any rule proscribing the use of evidence of a decisionmaker’s discriminatory motive
regarding one employment decision or category of employees to show that decisionmaker’s motives
regarding another employment decision or class of employees.
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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., 25 F.3d at 1329.
{¶ 65} 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
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January Term, 1996
Patrick’s state of mind and reflect a deep-rooted, ongoing pattern that is anything
but isolated.” (Emphasis added.) Id., 25 F.3d at 1331.
{¶ 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.
{¶ 67} 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.
{¶ 68} 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.
{¶ 69} None of the foregoing, however, should be construed as an outright
rejection of the application of principles of causation to an age discrimination case.
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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, 575 N.E.2d at 442. As we
explained in Mauzy, supra, 75 Ohio St.3d at 587, 664 N.E.2d at 1280, “[f]ormer
R.C. 4101.17 [now renumbered R.C. 4112.14], like Title VII of the Civil Rights
Act of 1964, 78 Stat. 253, as amended, Section 2000e et seq., Title 42, U.S. Code,
is not a thought control law.” Neither is R.C. 4112.02. “Thus, while proof of
discriminatory thought is necessary to the establishment of a discrimination claim,
it is not sufficient. There must be a consequential prohibited act.” Id., 75 Ohio
St.3d at 588, 664 N.E.2d at 1280.
{¶ 70} 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.
{¶ 71} 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
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to bear on employment decisions. This serves to facilitate the process of
determining whether liability was based on prejudice or discrimination.
{¶ 72} 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.
{¶ 73} These principles were aptly stated as follows in Stacks v.
Southwestern Bell Yellow Pages, Inc. (C.A.8, 1993), 996 F.2d 200, 201, fn. 1:
“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
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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, 930 F.2d 1348
(8th Cir.1991), mandates a different result. Although the Beshears court used the
terms ‘direct evidence’ and ‘indirect evidence,’ it is clear that those terms were not
used in their hornbook sense. In evaluating the evidence, the court stated that ‘we
conclude that Asbill did present evidence that may properly be characterized as
“direct.”’ Id. at 1354. This evidence consisted of a statement by a decisionmaker
‘to the effect that older employees have problems adapting to new employment
policies.’ Id. In hornbook terms, this statement constitutes circumstantial evidence
(in that it requires an inference from the statement proved to the conclusion
intended) that a discriminatory motive played a motivating factor in the challenged
employment decision. We believe that the term ‘direct evidence,’ as used in
Beshears, means only that the plaintiff must present evidence showing a specific
link between discriminatory animus and the challenged decision.” (Emphasis sic.)
{¶ 74} 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/Byrnes coin. They will query: Do we phrase the question in causative terms
and require direct evidence, or is circumstantial evidence sufficient? Is Barker’s
four-element test for establishing a prima facie case a straight-jacket on the
presentation of circumstantial evidence or one method of proof? The court today
does not do justice to the law or to those below seeking a definitive answer on how
to proceed in these types of discrimination cases.
{¶ 75} The decision of the court of appeals should be affirmed.
__________________
PFEIFER, J., dissenting.
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{¶ 76} 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.
{¶ 77} 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.
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