Mauzy v. Kelly Services, Inc.

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 578.]

MAUZY ET AL., APPELLANTS, v. KELLY SERVICES, INC. ET AL., APPELLEES.

[Cite as Mauzy v. Kelly Services, Inc., 1996-Ohio-265.]

Age discrimination—Phrase “Absent direct evidence of age discrimination” used

in Kohmescher v. Kroger Co., construed—Plaintiff must show that she

was “discharged” in order to establish a prima facia case of age

discrimination under former R.C. 4101.17—When plaintiff alleging

unlawful age discrimination chooses termination in lieu of transfer, the

decision cannot be construed as an actual discharge under former R.C.

4101.17—Test for determining whether an employee was constructively

discharged.

1. The phrase “Absent direct evidence of age discrimination,” as used in

Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439,

at the syllabus, 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.

2. Irrespective of whether an inference of discriminatory intent is created

directly or indirectly, the plaintiff must show that she was “discharged”

in order to establish a prima facie case of age discrimination under

former R.C. 4101.17.

3. Where a plaintiff alleging unlawful age discrimination chooses

termination in lieu of transfer, her decision cannot be construed as an

actual discharge under former R.C. 4101.17. However, she may

establish by sufficient evidence that she was constructively discharged.

SUPREME COURT OF OHIO

4. The test for determining whether an employee was constructively

discharged is whether the employer’s actions made working conditions

so intolerable that a reasonable person under the circumstances would

have felt compelled to resign.

__________________

(No. 95-301—Submitted March 5, 1996—Decided June 12, 1996.)

APPEAL from the Court of Appeals for Lake County, No. 94-L-029.

__________________

{¶ 1} Plaintiff-appellant, Phyllis Ruth Mauzy, began employment with

defendant-appellant, Kelly Services, Inc. (“Kelly”) in April 1974 as Resident

Branch Manger of Kelly’s Mentor, Ohio office. Throughout her employment,

Mauzy consistently received exceptional performance evaluations from her

supervisors. She was classified as a “Number 1 Manager” and, in 1987, received

the “Manager of the Year Award.”

{¶ 2} In September 1987, defendant-appellee Patricia N. Hart became

the Vice President and Regional Manager in charge of the Cleveland Region for

Kelly, and thus Mauzy’s supervisor. On August 6, 1992, Hart notified Mauzy

that she was being reassigned to manage Kelly’s recently downsized Mayfield

office and to fill the newly created position of workers’ compensation manager,

and that her salary and benefits would remain the same. Mauzy refused the

reassignment and her employment ended on August 18, 1992. Mauzy was sixty-

one years of age at the time.

{¶ 3} Hart and Mauzy disagree sharply on the series of events leading to

Mauzy’s reassignment. According to Hart, she attended a meeting during the

week of June 1, 1992, at Kelly’s corporate headquarters in Troy, Michigan, at

which there was discussion concerning cost-cutting approaches that could be

implemented by Kelly’s regional managers. In particular, it was suggested that

some of Kelly’s full-service offices could be downsized to “employment

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centers” and the downsized territory incorporated into other full-service centers

in the same geographic area. Also discussed was the creation of the position of

regional workers’ compensation manager who would monitor claims filed by

Kelly temporary employees and develop safety programs in conjunction with

Kelly’s customers.

{¶ 4} Accordingly, Hart made the decision to downsize the Mayfield

office and incorporate its territory into the Mentor office. She also determined

that Mauzy was the most qualified person in the Cleveland region to fill the job

of workers’ compensation manager. In order to implement this regional

reorganization, Hart decided to transfer the manager of the Mayfield branch,

Pamela Vaughn, to serve as regional branch manager of the Mentor office, and

transfer Mauzy to the Mayfield office to serve as both manager of the Mayfield

employment center and workers’ compensation manager.

{¶ 5} When Hart informed Mauzy of her reassignment, Mauzy first

expressed interest in the workers’ compensation position but, upon learning that

she would be relocated to the Mayfield office, refused the job. After several

attempts to convince Mauzy to accept the transfer, Hart finally told Mauzy that

if she did not report to Mayfield on August 17, 1992, Kelly would assume that

she wished to terminate her employment. When Mauzy failed to report to

Mayfield on August 17, she was given one more chance to report on August 18.

When she failed to report to Mayfield on August 18, it was concluded that she

had decided to relinquish her employment.

{¶ 6} Patricia MacKinnon, Regional Manager, Major Market Division

for Kelly, set forth a version of the facts similar to that of Hart’s, except to state

that Mauzy “left us no alternative but to terminate her employment.”

{¶ 7} Mauzy’s version is markedly different from that of Hart’s.

According to Mauzy, when Hart took over as her supervisor, Hart “made it

absolutely clear that she wanted younger people hired, and would only allow

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consideration of recent college graduates.” Hart’s first question was, “What is

the applicant’s age?” Hart asked Mauzy when she planned to retire and told her

that “[i]f I were you, I would take the money and run.” Hart also wrote a note

in Mauzy’s final performance evaluation that “you can’t teach an old dog new

tricks.”1

{¶ 8} Between 1988 and 1992, Hart consistently gave Mauzy negative

evaluations. Hart berated Mauzy in front of coworkers for things Hart allowed

younger employees to do. Hart removed three of Mauzy’s four office staff;

reduced Mauzy’s territory in half; and, in April 1992, had already introduced

Vaughn to Mauzy’s key customers. Mauzy further testified that Vaughn was

rated a “No. 5 manager”; and that the workers’ compensation manager position

was never filled and the Mayfield office was eventually “phased-out.”

{¶ 9} On September 24, 1992, Mauzy and her husband, appellants,

instituted this action in the Lake County Court of Common Pleas against Kelly

and Hart, alleging in part that Mauzy’s termination was the result of unlawful

age discrimination in violation of former R.C. 4101.17. The trial court entered

1. This note is the subject of much dispute. During Mauzy’s deposition, Kelly’s former counsel

handed Mauzy an exhibit consisting of several pages reflecting an evaluation of Mauzy for 1991.

The note was mixed in loosely with this evaluation. Mauzy read the note, stated, “I don’t think

you want me to have this note. I already read it, though,” and handed it back. Later, upon

retaining new counsel, Mauzy served a document request upon Kelly and Hart seeking the note.

Kelly’s former counsel filed an affidavit in which he stated that the note was a memorialization

of his own thought process, was not made by Kelly or any of its representatives and was

inadvertently mixed in between pages of the exhibit, and that the characterizations ascribed to

the note were inaccurate. In particular, he stated that the note was written on “my own ‘notepad

stationery,’ with the heading ‘From The Desk Of: Robert S. Gilmore.’” Moreover, Gilmore

claimed that “[h]e searched [his] files, but was unable to locate the notepaper,” and that in any

event the note was protected under the attorney work-product doctrine. Mauzy, however, filed

an affidavit stating that “during [her] deposition, [she] looked at both sides of the note and it did

not contain any printing, and specifically did not contain the printed words “From the Desk of:

ROBERT S. GILMORE.” In addition, Mauzy’s affidavit recited that “[t]he note did contain

handwriting in thin black ink which [she] recognized to be the handwriting of Patricia Hart.”

We do not purport by this rendition to resolve any issues of fact or law that may arise

from the circumstances surrounding this note. Our only concern at this point is with Mauzy’s

testimony regarding the note and the role it plays in light of the issues on appeal and Civ.R.

56(C).

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summary judgment for Kelly and Hart, concluding that Mauzy “was not

discharged from her employment within the meaning of the statute so as to

maintain a claim for age discrimination but instead voluntarily relinquished her

employment.”

{¶ 10} The court of appeals affirmed the decision of the trial court. In

so doing, the court agreed with Mauzy that “the four elements [to establish a

prima facie case of age discrimination] set forth in the syllabus of Kohmescher

[v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439] 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.” Since Mauzy was offered a lateral transfer and voluntarily chose

to reject it, “she was not terminated within the meaning of R.C. 4101.17.”

{¶ 11} The cause is now before the court pursuant to the allowance of a

discretionary appeal.

___________________

Dworken & Bernstein Co., L.P.A., Patrick J. Perotti and Robert J.

Hoffman, for appellants.

Thompson, Hine & Flory, Michael J. Frantz and Daniel A. Ward, for

appellees.

Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M.

Gittes, urging reversal for amici curiae, Ohio Employment Lawyers

Association, Ohio Now Education and Legal Fund, National Conference of

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Black Lawyers, Columbus Chapter, Mid Ohio Board for an Independent Living

Environment, Ada-Ohio, and Police Officers for Equal Rights.

Cathy Ventrell-Monsees, urging reversal for amicus curiae, American

Association of Retired Persons.

Vorys, Sater, Seymour & Pease and David A. Westrup, urging affirmance

for amicus curiae, Ohio Chamber of Commerce.

___________________

ALICE ROBIE RESNICK, J.

{¶ 12} There are two issues presented for our determination — one

involving the grant of summary judgment in favor of appellees on Mauzy’s

claim of unlawful age discrimination under former R.C. 4101.17, and the other

involving the denial of two requests by Mauzy for additional discovery. The

facts pertaining to the second issue will be set forth infra. We proceed first to

the issue of summary judgment because this issue can be resolved without regard

to the further issue of discovery.

I

{¶ 13} The broad issue here is whether Mauzy presented sufficient

evidence to withstand a motion for summary judgment. Ultimately, this issue

turns on whether the circumstances surrounding Mauzy’s separation from Kelly

can properly be viewed as a “discharge” under former R.C. 4101.17. However,

in light of the opinions below and the arguments advanced by the parties, we

find it necessary to clarify certain aspects of the requirements for establishing a

prima facie case of age discrimination.

{¶ 14} Former R.C. 4101.17 (now renumbered R.C. 4112.14) provided

in part as follows:

“(A) No employer shall discriminate in any job opening against any

applicant or discharge without just cause any employee aged forty or older who

is physically able to perform the duties and otherwise meets the established

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January Term, 1996

requirements of the job and laws pertaining to the relationship between employer

and employee.”

{¶ 15} In Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202,

451 N.E.2d 807, we adopted the analytic framework established by the United

States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668, for use in Title VII cases, and modified the

elements of a prima facie case to fit the contours of former R.C. 4101.17. Thus,

we held that:

“In order to establish a prima facie case of age discrimination, violative

of R.C. 4101.17, in an employment discharge action, plaintiff-employee must

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. Defendant-employer may then overcome the

presumption inherent in the prima facie case by propounding a legitimate,

nondiscriminatory reason for plaintiff’s discharge. Finally, plaintiff must be

allowed to show that the rationale set forth by defendant was only a pretext for

unlawful discrimination.”2

{¶ 16} In Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575

N.E.2d 439, at the syllabus, we modified Barker, in relevant part, by prefacing

the first paragraph of its syllabus with the phrase, “Absent direct evidence of age

discrimination.” In so doing, we explained as follows:

“Research indicates that the McDonnell Douglas standards borrowed in

Barker, supra, were never intended to be applied strictly. * * *

2. The fourth element for the establishment of the prima facie case set forth herein is

questionable in light of the recent United States Supreme Court decision in O’Connor v. Consol.

Coin Caterers Corp. (1996), 517 U.S. __, 116 S.Ct. 1307, 134 L.Ed.2d 433, 1996 WL 142564.

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“Moreover, as the high court stated in Trans World Airlines, Inc. v.

Thurston (1985), 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523, 533,

* * * ‘* * * the McDonnell Douglas test is inapplicable where the plaintiff

presents direct evidence of discrimination. * * *’

“* * * As the court stated in Barnes v. GenCorp., Inc. (C.A.6, 1990), 896

F.2d 1457, 1464: ‘* * * the importance of the McDonnell Douglas “test” is its

discussion of the elements a plaintiff must prove to establish a prima facie case

of discrimination absent direct, circumstantial, or statistical evidence of

discrimination.’ (Emphasis added.) * * *

“* * *

“Therefore, based on all of the foregoing, we modify the first sentence

of paragraph one of the syllabus in Barker, supra, * * *. Under this modified

standard, it should be abundantly clear that direct evidence of age discrimination

will be sufficient to establish a prima facie case.” Id., 61 Ohio St.3d at 504-506,

575 N.E.2d at 442-443.

{¶ 17} The court of appeals interpreted the words “direct evidence” to

mean “‘[e]vidence that directly proves a fact, without an inference or

presumption.’” Both parties agree that this interpretation, as stated and applied

by the court of appeals, amounts to a rendition of a dichotomy between “direct”

and “circumstantial” evidence. Mauzy argues, however, that the term “direct

evidence,” as used in Kohmescher, “refers to the method of proof and not the

type of evidence.” (Emphasis sic.) We agree.

{¶ 18} In order to prevail in an employment discrimination case, the

plaintiff must prove discriminatory intent. “‘The state of a man’s mind is as

much a fact as the state of his digestion. It is true that it is very difficult to prove

what the state of a man’s mind at a particular time is, but if it can be ascertained

it is as much a fact as anything else.’” United States Postal Serv. Bd. of

Governors v. Aikens (1983), 460 U.S. 711, 716-717, 103 S.Ct. 1478, 1482, 75

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L.Ed.2d 403, 411, quoting Eddington v. Fitzmaurice (1885), 29 Ch.Div. 459,

483.

{¶ 19} The function of the McDonnell Douglas prima facie test is to

allow the plaintiff to raise an inference of discriminatory intent indirectly. It

serves to eliminate the most common nondiscriminatory reasons for the

employer’s action: lack of qualifications or the absence of a vacancy. Texas

Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 253-254, 101 S.Ct.

1089, 1094, 67 L.Ed.2d 207, 215-216; Internatl. Bhd. of Teamsters v. United

States (1977), 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396, 429, fn.

44.

{¶ 20} As the Supreme Court explained in Furnco Constr. Corp. v.

Waters (1978), 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-2950, 57 L.Ed. 2d 957,

967:

“A prima facie case under McDonnell Douglas raises an inference of

discrimination only because we presume these acts, if otherwise unexplained,

are more likely than not based on the consideration of impermissible factors. See

Teamsters v. United States, supra, at 358 [97 S. Ct. at 1866, 52 L.Ed.2d at 429]

n. 44. And we are willing to presume this largely because we know from our

experience that more often than not people do not act in a totally arbitrary

manner, without any underlying reasons, especially in a business setting. Thus,

when all legitimate reasons for rejecting an applicant have been eliminated as

possible reasons for the employer's actions, it is more likely than not the

employer, who we generally assume acts only with some reason, based his

decision on an impermissible consideration such as race.” (Emphasis sic.)

{¶ 21} Thus, 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. As the high court explained

in Teamsters, supra, 431 U.S. at 358, 97 S.Ct. at 1866, 52 L.Ed.2d at 429:

“[T]he McDonnell Douglas pattern [is not] the only means of

establishing a prima facie case of individual discrimination. Our decision in that

case * * * did not purport to create an inflexible formulation. We expressly

noted that ‘(t)he facts necessarily will vary in Title VII cases, and the

specification * * * of the prima facie proof required from (a plaintiff) is not

necessarily applicable in every respect to differing factual situations.’ The

importance of McDonnell Douglas lies, not in its specification of the discrete

elements of proof there required, but in its recognition of the general principle

that any Title VII plaintiff must carry the initial burden of offering evidence

adequate to create an inference that an employment decision was based on a

discriminatory criterion illegal under the Act.” (Emphasis sic.) (Citation

omitted.) Thus, “[a]s in any lawsuit, the plaintiff may prove his case by direct

or circumstantial evidence.” Aikens, supra, 460 U.S. at 714, 103 S.Ct. at 1481,

75 L.Ed.2d at 409, fn. 3.

{¶ 22} This is clearly what we had in mind in Kohmescher, supra, 61

Ohio St.3d at 505, 575 N.E.2d at 442, when we emphasized the notion that the

four-element McDonnell Douglas prima facie test comes into play “‘absent

direct, circumstantial, or statistical evidence of discrimination.’” In fact, the

dissenting opinion of Justice Holmes, albeit lamenting this conclusion,

interpreted the majority opinion in a similar vein. Id., 61 Ohio St.3d at 507, 575

N.E.2d at 443.

{¶ 23} Appellees argue, however, “[t]hat a plaintiff attempting to

produce direct evidence to avoid application of the McDonnell Douglas test

cannot rely upon the presentation of merely circumstantial evidence.” In

support, appellees cite a litany of federal cases which do, indeed, draw a similar

conclusion. In reaching such a conclusion, these cases invariably rely upon

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certain language concerning “direct evidence” used by the United States

Supreme Court in Trans World Airlines, Inc. v. Thurston (1985), 469 U.S. 111,

105 S.Ct. 613, 83 L.Ed.2d 523, and by Justice O’Connor’s concurring opinion

in Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 109 S.Ct. 1775, 104

L.Ed.2d 268. The cases, however, attempt to apply the term “direct evidence”

in a context different from that of its origin.

{¶ 24} In Thurston, supra, 469 U.S. at 121, 105 S.Ct. at 621, 83 L.Ed.2d

at 533, the Supreme Court stated that “the McDonnell Douglas test is

inapplicable where the plaintiff presents direct evidence of discrimination.” The

“direct evidence” in Thurston was a transfer policy under which airline captains

disqualified from serving because of their age were not afforded the same

privilege as captains disqualified for reasons other than their age to displace less

senior flight engineers. The court found this policy to be discriminatory on its

face, thus placing the burden of persuasion on the employer to prove an

affirmative defense. Id., 469 U.S. at 121-122, 105 S.Ct. at 621-622, 83 L.Ed.2d

at 533. The opinion in Thurston, however, does not disclose whether the term

“direct evidence” was being used to refer to the type of evidence required in

order to “shift” the burden of persuasion to the employer, or merely to indicate

the fact that plaintiff had proven discrimination.

{¶ 25} In Price Waterhouse, the plurality opinion concluded that when a

plaintiff proves that gender played a motivating part in an employment decision,

the burden of persuasion is then upon the employer to prove that it would have

made the same decision even if it had not taken plaintiff’s gender into account.

In concluding that plaintiff proved discrimination, the plurality focused its

attention on certain negative gender-related comments made by Price

Waterhouse partners in evaluating Hopkins for partnership. In its opinion, the

plurality specifically stated that:

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“By focusing on Hopkins’ specific proof, however, we do not suggest a

limitation on the possible ways of proving that stereotyping played a motivating

role in an employment decision, and we refrain from deciding here which

specific facts, ‘standing alone,’ would or would not establish a plaintiff’s case,

since such a decision is unnecessary in this case.” Id., 490 U.S. at 251-252, 109

S.Ct. at 1791, 104 L.Ed.2d at 288-289.

{¶ 26} On the other hand, in her concurring opinion Justice O’Connor

indicated that she would require “direct evidence that decisionmakers placed

substantial negative reliance on an illegitimate criterion in reaching their

decision.” Id., 490 U.S. at 277, 109 S.Ct. at 1805, 104 L.Ed.2d at 305,

O’Connor, J., concurring.3

{¶ 27} The federal circuits, therefore, were left to grapple with the issue

of whether, in light of Thurston and Price Waterhouse, the plaintiff is required

to present “direct evidence” of discrimination as a precondition to “shifting” the

burden of persuasion and, if so, what constitutes “direct evidence.” Not

surprisingly, the various federal courts have about as many solutions to this

problem as they do employment discrimination cases. See, e.g., Manzer v.

Diamond Shamrock Chemicals Co. (C.A.6, 1994), 29 F.3d 1078; Davis v.

Chevron U.S.A., Inc. (C.A.5, 1994), 14 F.3d 1082; Ostrowski v. Atlantic Mut.

Ins. Cos. (C.A.2, 1992), 968 F.2d 171; Tyler v. Bethlehem Steel Corp. (C.A.2,

3. The dissent interpreted the holding of the case narrowly:

“[I]n a limited number of cases Title VII plaintiffs, by presenting direct and substantial

evidence of discriminatory animus, may shift the burden of persuasion to the defendant to show

that an adverse employment decision would have been supported by legitimate reasons. The

shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an

unlawful motive was a substantial factor actually relied upon in making the decision.” Price

Waterhouse 490 U.S. at 280, 109, S.Ct. at 1806, 104 L.Ed.2d at 307.

Justice White, however, unlike Justice O’Connor, did not indicate a preference for “direct

evidence” in his concurring opinion. Thus, only four Justices (three dissenting and one

concurring) have indicated a preference for “direct evidence.” Moreover, in light of the changed

composition of the high court, it is impossible to gauge a majority position on this issue.

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1992), 958 F.2d 1176; Jackson v. Harvard Univ. (C.A.1, 1990), 900 F.2d 464;

Chipollini v. Spencer Gifts, Inc. (C.A.3, 1987), 814 F.2d 893.

{¶ 28} In this context, however, the term “direct evidence,” whatever it

means and to the extent it is even required, is used to distinguish a Thurston or

Price Waterhouse case from a McDonnell Douglas case. See Sullivan,

Accounting for Price Waterhouse: Proving Disparate Treatment Under Title

VII (1991), 56 Brook.L.Rev. 1107, 1137. In other words, the term is inserted as

a precondition to “shifting” the burden of persuasion; it was not fashioned by its

proponents to create a dichotomy between two opposing methods of establishing

a McDonnell Douglas prima facie case. The caliber of evidence as “direct” does,

indeed, eschew reliance on the McDonnell Douglas paradigm, not because it is

the sole alternative method by which to create an inference of discrimination,

but because it rises to the level of actually proving discrimination. The issue of

what is required to “shift” the burden of persuasion, however, is an issue separate

and apart from the issue of what is required to raise an inference of

discrimination.

{¶ 29} Clearly, in Kohmescher we were not concerned with the issue of

when the burden of persuasion should be placed on the employer. We were only

concerned “that direct evidence of discrimination will be sufficient to establish

a prima facie case.” Id., 61 Ohio St.3d at 506, 575 N.E.2d at 443. In this

context, the phrase “direct evidence of age discrimination” is indicative of a

method of proof, not a type of evidence. It is, in a sense, a misnomer. It means

that the plaintiff may establish a prima face case directly by presenting evidence,

of any nature, to show that the employer more likely than not was motivated by

discriminatory animus. Barnes v. GenCorp., Inc. (C.A. 6, 1990), 896 F.2d 1457,

1464; Perry v. Kunz (C.A.8, 1989), 878 F.2d 1056, 1058-1059; Oxman v. WLS-

TV (C.A.7, 1988), 846 F.2d 448, 454-455; Wilhelm v. Blue Bell, Inc. (C.A.4,

1985), 773 F.2d 1429, 1432; Equal Emp. Opportunity Comm. v. Electrolux

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Corp. (D.C.Va. 1985), 611 F.Supp. 926, 927-928; Blackwell v. Sun Elec. Corp.

(C.A.6, 1983), 696 F.2d 1176, 1180; Lovelace v. Sherwin-Williams Co. (C.A.4,

1982), 681 F.2d 230, 239; Stanojev v. Ebasco Services, Inc. (C.A. 2, 1981), 643

F.2d 914, 920-921; Smith v. Univ. of North Carolina (C.A.4, 1980), 632 F.2d

316, 335; Loeb v. Texton, Inc. (C.A. 1, 1979), 600 F.2d 1003, 1017.

{¶ 30} Accordingly, we now clarify that the phrase “Absent direct

evidence of age discrimination,” as used in Kohmescher, supra, at the syllabus,

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 the employer more likely than not was

motivated by discriminatory intent.

{¶ 31} Mauzy further argues that pursuant to Kohmescher, where there

is direct evidence of discriminatory animus, “summary judgment is

inappropriate, regardless whether the separation from employment is styled a

termination, a resignation or a constructive discharge.” Indeed, Justice Holmes

similarly characterized the holding of Kohmescher: “This newly adopted test is

that even the slightest bit of evidence of age discrimination adduced by the

plaintiff obviates the necessity to prove that the plaintiff was discharged * * *.”

Kohmescher, supra, 61 Ohio St.3d at 507, 575 N.E.2d at 443 (Holmes, J.,

dissenting). We, however, disagree.

{¶ 32} Evidence of discriminatory intent is nothing more than proof of

discriminatory thought. Former R.C. 4101.17, 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. As Justice O’Connor explained:

“[Title VII was meant] to eradicate discriminatory actions in the

employment setting, not mere discriminatory thoughts. Critics of the bill that

became Title VII labeled it a ‘thought control bill,’ and argued that it created a

‘punishable crime that does not require an illegal external act as a basis for

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judgment.’ 100 Cong.Rec. 7254 (1964) (remarks of Sen. Ervin). Senator Case

* * * responded:

“‘The man must do or fail to do something in regard to employment.

There must be some specific external act, more than a mental act. Only if he

does the act because of the grounds stated in the bill would there be any legal

consequences.’” Price Waterhouse, supra, 490 U.S. at 262, 109 S.Ct. at 1797,

104 L.Ed.2d at 295-296.

{¶ 33} 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. The prohibited act under former R.C. 4101.17, as

relevant here, is a “discharge.” Other actions, such as transfers or promotions,

are not prohibited unless they amount to a “discharge.” This is a legislative

choice that we cannot disturb.

{¶ 34} It is true, as Mauzy urges, that direct evidence of discriminatory

animus eschews reliance on the prima facie four-element test of Barker and

Kohmescher, supra. This does not mean, however, that a mandate of the statute

may be ignored simply because it happens to be one of the elements of a prima

facie case set forth in those cases. Direct evidence of discriminatory thought no

more obviates the statutory requirement that plaintiff be discharged than it does

the statutory requirement that the plaintiff fall within the protected age group.

To hold as Mauzy suggests would result in rewriting the statute or, worse,

prohibiting mere thought.

{¶ 35} Thus, irrespective of which method is utilized to establish

discriminatory intent, plaintiff must show that she was “discharged on account

of age.” (Emphasis added.) Kohmescher, supra, 61 Ohio St.3d at 505, 575

N.E.2d at 442.

{¶ 36} Mauzy also contends that her burden to show that she was

discharged is satisfied by MacKinnon’s statement that Mauzy “left us no

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alternative but to terminate her [Mauzy’s] employment.” According to Mauzy,

“[i]t is the termination, not the reason for it, that allows the prima facie case.”

{¶ 37} In a general sense, Mauzy is correct; disputing the employer’s

alleged legitimate, nondiscriminatory reason for discharging a plaintiff is not a

requirement of the prima facie case. However, when a plaintiff chooses

termination in lieu of transfer, her decision is not construed as an actual

discharge. Instead, she is required to show as a part of her prima facie case that

her choice to be terminated was involuntary or coerced. Kohmescher, supra, 61

Ohio St.3d at 506, 575 N.E.2d at 443; Barker, supra, 6 Ohio St.3d at 148, 6 OBR

at 204, 451 N.E.2d at 810. Mauzy can stand on no better footing by refusing her

transfer assignment in the face of termination, than do employees who elect

termination in lieu of transfer. Former R.C. 4101.17 proscribes discriminatory

discharges, not transfers. It cannot be transformed into a palliative for every

unattractive workplace transfer by the simple expedient of refusing the

assignment. See Bristow v. Daily Press, Inc. (C.A.4, 1985), 770 F.2d 1251,

1255.

{¶ 38} Since Mauzy in effect chose termination over transfer, she must

show that her decision was involuntary or, as the doctrine is more familiarly

known, that she was constructively discharged. See Clowes v. Allegheny Valley

Hosp. (C.A.3, 1993), 991 F.2d 1159, 1160-1161. Courts generally apply an

objective test in determining when an employee was constructively discharged,

viz., whether the employer’s actions made working conditions so intolerable that

a reasonable person under the circumstances would have felt compelled to

resign.4 Id., 991 F.2d at 1161; McCann v. Litton Systems, Inc. (C.A.5, 1993),

4. Not all of the federal circuits agree on the legal standards by which to determine whether a

constructive discharge has occurred. See Levendos v. Stern Entertainment, Inc. (C.A.3, 1988),

860 F.2d 1227, 1230-1231. The objective standard appears to be more consonant with the

purpose of the prima facie case to raise an inference of discrimination. To require proof that the

employer’s actions were deliberately aimed at forcing resignation transcends the design of the

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986 F.2d 946, 951; Stephens v. C.I.T. Group/Equipment Financing, Inc. (C.A.5,

1992), 955 F.2d 1023, 1027; Spulak v. K Mart Corp. (C.A.10, 1990), 894 F.2d

1150, 1154; Levendos v. Stern Entertainment, Inc. (C.A.3, 1988), 860 F.2d 1227,

1230-1231.

{¶ 39} In applying this test, courts seek to determine whether the

cumulative effect of the employer’s actions would make a reasonable person

believe that termination was imminent. They recognize that there is no sound

reason to compel an employee to struggle with the inevitable simply to attain the

“discharge” label. No single factor is determinative. Instead, a myriad of factors

are considered, including reductions in sales territory, poor performance

evaluations, criticism in front of coemployees, inquiries about retirement

intentions, and expressions of a preference for employees outside the protected

group. Nor does the inquiry change solely because an option to transfer is

thrown into the mix, lateral though it may be. A transfer accompanied by

measurable compensation at a comparable level does not necessarily preclude a

finding of constructive discharge. Our review is not so narrowly circumscribed

by the quality and attributes of the transfer option itself. A sophisticated

discriminating employer should not be permitted to circumvent the statute by

transferring an older employee to a sham position as a prelude to discharge. See

Stephens, supra; Guthrie v. J.C. Penney Co., Inc. (C.A.5, 1986), 803 F.2d 202;

Crawford v. ITT Consumer Financial Corp. (D.C.Ohio 1986), 653 F.Supp.

1184; Schneider v. Jax Shack, Inc. (C.A.8, 1986), 794 F.2d 383; Goss v. Exxon

Office Systems Co. (C.A.3, 1984), 747 F.2d 885; Jacobson v. Am. Home

Products Corp. (D.C.Ill. 1982), 36 FEP Cases 559; Annotation, Circumstances

Which Warrant Finding of Constructive Discharge Under Age Discrimination

prima facie case. We note, however, that the result we reach in this case would not be affected

by the application of a subjective standard.

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in Employment Act (29 USCS §§ 621 et seq.) (1989), 93 A.L.R.Fed. 10,

Sections 9-16.

{¶ 40} Applying the law as set forth above to the facts of this case, we

conclude that summary judgment was improperly granted in favor of Hart and

Kelly because of the existence of a genuine issue of material fact over whether

Mauzy was constructively discharged on account of her age. Under the record

developed in the trial court, there is evidence showing that Mauzy met with great

success over the years in her position as resident branch manager at Kelly’s

Mentor branch. When Hart took over as Mauzy’s supervisor, she expressed her

preference for younger employees, inquired into Mauzy’s plans to retire, and

told her to “take the money and run.” She berated Mauzy in front of her

coworkers, gave her negative evaluations, reduced her staff and territory,

introduced a younger employee to Mauzy’s key customers, and noted in

Mauzy’s final evaluation that “you can’t teach an old dog new tricks.”

Subsequently, she sought to transfer Mauzy to a position that was newly created,

and which was never filled following Mauzy’s separation from employment,

while replacing Mauzy with a younger employee with a lower rating. Although

appellees’ version of the events is markedly different, in our view reasonable

minds could conclude from the evidence that appellees were motivated by

discriminatory animus and that Mauzy was constructively discharged from her

employment. Thus, Mauzy has presented sufficient evidence to raise an

inference of age discrimination under former R.C. 4101.17.

{¶ 41} Accordingly, the decision of the court of appeals is reversed as to

this issue.

II

{¶ 42} The second issue presented for determination involves the trial

court’s denial of Mauzy’s requests for further discovery. The facts relevant to

this issue are as follows. On February 23, 1993, the trial court entered a pretrial

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order indicating that discovery had been completed. Following several

continuances, appellees filed their motion for summary judgment on April 6,

1993. On April 29, 1993, Mauzy’s previous counsel filed a motion to extend

the time to respond to appellees’ motion for summary judgment and to withdraw

as Mauzy’s counsel of record, which the trial court granted on May 4, 1993.

{¶ 43} On May 13, 1993, Mauzy’s present counsel filed a motion for a

stay of proceedings, stating that “[i]n order to properly undertake

represent[ation] * * * [he] would require a * * * period of time to become

completely familiar with the file and perform certain discovery which is

necessary to properly respond to the summary judgment motion.” On June 22,

1993, the trial court granted a stay of sixty days and scheduled a pretrial

conference for August 23.

{¶ 44} During July and August 1993, Mauzy’s new counsel attempted to

schedule depositions pursuant to Civ.R. 30(B)(4) and (5), seeking a number of

documents and to depose Pamela Vaughn. Appellees responded by filing a

motion for a protective order. On August 23, 1993, the trial court entered an

order prohibiting Mauzy from proceeding with the depositions, noting that “the

discovery deadlines * * * have long since passed.”

{¶ 45} On August 24, Mauzy filed a motion pursuant to Civ.R. 56(F) “to

complete discovery in this action in order to adequately respond to the pending

summary judgment.” She also argued, however, that further discovery “is

necessary to the presentation of the merits of her claim.” In particular, she

sought to depose certain individuals, including her replacement, concerning the

issues of discriminatory intent, replacement by a younger employee and the

closing of the Mayfield office. On August 27, 1993, the trial court denied

Mauzy’s request for further discovery on the basis that it had already given

Mauzy a reasonable opportunity to conduct discovery when it stayed the

proceedings on June 22 for sixty days, “thereby allowing Plaintiff’s counsel an

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opportunity to review the file [and] engage in discovery.” The court did indicate,

however, that “[d]ue to any misinterpretation of the Court’s prior order, the

Court will grant Plaintiff an additional leave to 12:00 noon, September 3, 1993,”

apparently to respond to appellees’ motion for summary judgment. Mauzy filed

her brief in opposition to appellees’ summary judgment motion on September 2.

{¶ 46} On September 15, appellees requested a continuance of the trial

date along with a motion by their former counsel to withdraw as counsel of

record. The motion was necessitated by Mauzy’s allegations that prior counsel

for appellees had destroyed a key piece of evidence. See fn. 1. On October 6,

the court granted appellees’ counsel’s motion to withdraw.

{¶ 47} On December 29 and 30, Mauzy again requested additional

discovery in light of the rescheduling of the trial date until April 1994. On

January 18, 1994, the trial court denied this request and entered summary

judgment in favor of appellees.

{¶ 48} The court of appeals held that:

“It is apparent from the record that appellants were afforded ample time

within which to conduct discovery. Furthermore, it does not appear that the

requested discovery would have affected the disposition of the summary

judgment motion, as that motion was decided upon appellant’s failure to prove

that she was discharged, as required by Kohmescher to establish a prima facie

case. Appellants’ proffered discovery dealt with the issue of age bias, which is

irrelevant under R.C. 4101.17 unless the employee was discharged. See

Kohmescher, supra. As a result, appellants have failed to demonstrate that the

trial court abused its discretion * * *.”

{¶ 49} In light of our holding that summary judgment was improper

under the record as presently developed, it is no longer of any concern whether

“the requested discovery would have affected the disposition of the summary

judgment motion.” Accordingly, the issue of whether the trial court abused its

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discretion in denying Mauzy’s motion for discovery pursuant to Civ.R. 56(F) is

moot. Civ.R. 56(F) operates only when it appears that the nonmoving party

cannot present facts essential to justify opposition to a motion for summary

judgment. Such a situation can no longer be said to exist.

{¶ 50} Thus, the only issue that confronts us is whether the trial court

unreasonably denied Mauzy the pretrial opportunity to fully prepare her case for

litigation.

{¶ 51} “In discovery practices, the trial court has a discretionary power

not a ministerial duty.” State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d

55, 57, 63 O.O.2d 88, 90, 295 N.E.2d 659, 661. Thus, the standard of review of

a trial court’s decision in a discovery matter is whether the court abused its

discretion. See Heat & Control, Inc. v. Hester Industries, Inc. (C.A. Fed. 1986),

785 F.2d 1017, 1022.

{¶ 52} Such discretion, however, is not without limits. Although

unusual, appellate courts will reverse a discovery order “when the trial court has

erroneously denied or limited discovery.” 8 Wright, Miller & Marcus, Federal

Practice & Procedure (2 Ed. 1994) 92, Section 2006. Thus, “[a]n appellate court

will reverse the decision of a trial court that extinguishes a party’s right to

discovery if the trial court’s decision is improvident and affects the discovering

party’s substantial rights.” Rossman v. Rossman (1975), 47 Ohio App.2d 103,

110, 1 O.O.3d 206, 210, 352 N.E.2d 149, 153-154. See, also, Stegawski v.

Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 86, 523 N.E.2d

902, 910; Smith v. Klein (1985), 23 Ohio App.3d 146, 151, 23 OBR 387, 393,

492 N.E.2d 852, 858; Simmons v. Merrill Lynch, Pierce, Fenner & Smith (1977),

53 Ohio App.2d 91, 97, 7 O.O.3d 65, 69, 372 N.E.2d 363, 368; Toledo Edison

Co. v. GA Technologies, Inc. (C.A.6, 1988), 847 F.2d 335, 341; Weahkee v.

Norton (C.A.10, 1980), 621 F.2d 1080, 1082 (employment discrimination

action); Goldman v. Checker Taxi Co. (C.A.7, 1963), 325 F.2d 853, 856; Wright,

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Miller & Marcus, Federal Practice & Procedure, supra, at 92-93, fn. 33, Section

2006; Annotation (1977), 31 A.L.R.Fed. 657.

{¶ 53} In his May 13, 1993 motion for a stay of proceedings, Mauzy’s

substitute counsel indicated that he would need to conduct further discovery in

order to properly undertake representation of Mauzy. There is nothing in the

record to suggest that this request was interposed as a dilatory tactic. The record

discloses that further discovery was warranted in order to fully prepare to litigate

the issues of discriminatory animus and constructive discharge, and that the

discovery that had already been conducted was not overburdensome. Moreover,

the initial request for additional discovery was not raised, as appellees suggest,

at the “eleventh hour.” The motion for summary judgment was not ruled upon

until January 18, 1994, with trial having been reset for some time thereafter.

Under these circumstances, we hold that it is improvident to deny further

discovery to Mauzy’s substitute counsel.

{¶ 54} The trial court’s order of August 27, standing alone, creates the

illusion that Mauzy’s second counsel was given the opportunity to conduct

additional discovery. That order denied Mauzy’s request for further discovery

on the purported basis that the court had already granted a sixty-day stay to

afford Mauzy’s second counsel “an opportunity to * * * engage in discovery.”

Yet, when Mauzy’s substitute counsel had attempted discovery during that

period, he was met by the trial court’s August 23 order prohibiting the attempted

discovery on the basis that “the discovery deadlines * * * have long since

passed.” These incongruous orders effectively denied Mauzy the opportunity to

fully prepare her cause for litigation.

{¶ 55} Accordingly, we conclude that the trial court abused its discretion

in denying Mauzy further discovery, and the decision of the court of appeals is

reversed as to this issue.

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{¶ 56} In light of all the foregoing, the judgment of the court of appeals

is reversed, and the cause is remanded to the trial court for further proceedings

not inconsistent with this opinion.

Judgment reversed

and cause remanded.

DOUGLAS, HILDEBRANDT, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., and COOK, J., dissent.

LEE H. HILDEBRANDT, JR., J., of the First Appellate District, sitting for

WRIGHT, J.

__________________

COOK, J., dissenting.

{¶ 57} I respectfully dissent. My disagreement is particularly with the

stated proposition that “direct” evidence is a method of proof rather than a type of

evidence, and with the conclusion that it is a factual question whether Mauzy’s

lateral transfer can amount to a constructive discharge.

DIRECT EVIDENCE

{¶ 58} The law is settled that direct evidence of discrimination obviates the

necessity of raising an inference of discrimination through a McDonnell Douglas

showing of a prima facie case. The court of appeals was correct in referring to

Black’s Law Dictionary to define the term “direct evidence” as used in the

Kohmescher syllabus. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575

N.E.2d 439. That case had it right in terms of the relationship between direct

evidence of discrimination (such as documents disclosing the employer’s use of age

as a criterion for employment decisions) and the alternative, prima facie showing

through a McDonnell Douglas presentation.

CONSTRUCTIVE DISCHARGE

{¶ 59} Mauzy chose to sue her employer under R.C. 4101.17, which

prohibits discharges on the basis of age. Taking all of Mauzy’s testimony on the

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issue of her termination as true, as a matter of law, Mauzy was not discharged. The

majority concedes that in order to establish that she was constructively discharged,

Mauzy must show that her employer made working conditions so intolerable that a

reasonable person under the circumstances would have felt compelled to resign.

The evidence, construed in Mauzy’s favor, amounts to the following: Hart had an

unjustified, negative, discriminatory attitude toward Mauzy which motivated the

transfer decision. That is it. Hart’s discriminatory attitude is not actionable under

R.C. 4101.17. Hart’s action is the transfer. This action is not prohibited by R.C.

4101.17, even if it is motivated by a discriminatory animus. What is prohibited is

a discriminatory transfer that equates to a discharge.

{¶ 60} As a matter of law, Mauzy’s transfer cannot be said to equate to a

discharge. She must show that the transfer rendered the working conditions so

intolerable that a reasonable person under the circumstances would have felt

compelled to resign. The transfer was to a new position in a different branch office,

in the same locale (i.e., greater Cleveland), at the same compensation level. Indeed,

Mauzy never even worked one day under the working conditions of the new job to

which she was assigned. The majority seems to go beyond the evidence presented

in the summary judgment proceedings in implying that the new position offered to

Mauzy was a sham, just a prelude to discharge. Under the circumstances of this

case, involving no change of residence or other such “detrimental reliance,” it

would be pure speculation to label the voluntary relinquishment of the transfer a

constructive discharge on the untested assessment that the position was a sham.

{¶ 61} Although Mauzy may have legitimately resented the overtones of

her dealings with Hart, Hart did not fire her, did not insist Mauzy accept a transfer

across the country as in Kohmescher, and did not even reduce Mauzy’s pay or her

status as a management employee. Whatever unlawful attitude Hart may have

harbored and displayed, it is only her decisions as to Mauzy’s employment that are

actionable, and under R.C. 4101.17, only discharge decisions.

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DISCOVERY

{¶ 62} I would affirm the judgment of the court of appeals on the discovery

issue because, like that court, I find that the requested discovery would not have

affected the issue of whether or not Mauzy was discharged.

{¶ 63} For the foregoing reasons, summary judgment was properly granted

and I would affirm the judgment of the court of appeals.

MOYER, C.J., concurs in the foregoing dissenting opinion.

__________________

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