Mauzy v. Kelly Services, Inc.

Cook, J.,

dissenting. 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

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

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 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 *594 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.

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 (ie., 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.

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.

DISCOVERY

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.

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.