Petition for Writ of Certiorari — Bolander v. BP Oil Co.

(1) srrerss

/ FILED

041574 MAY 11 2005

No.

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SAMUEL BOLANDER,

Petitioner,

-\V-

BP OIL COMPANY,

BP PRODUCTS NORTH AMERICA INC.,

AND BP RETIREMENT ACCUMULATION PLAN

Respondents.

On Petition For Writ of Certiorari

To The United States Court of Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS A. SOBECKI

Counsel of Record

811 Spitzer Bldg.

520 Madison Avenue

Toledo, OH 43604-1304

PH: (419) 242-9908

FAX: (419) 242-9937

Attorney for Petitioner

A RR A NER SERN RR ad LT ETAL T ELLE IIIS

QUESTIONS PRESENTED

1. Whether the Sixth Circuit Court of Appeals, in claims

brought under the Ohio anti-discrimination statute, Ohio Rev.

Code Ann. § 4112.02 and Ohio Rev. Code Ann. § 4112.99,

which in relevant part parallels the Age Discrimination in

Employment Act of 1967 (ADEA), correctly held that, as a

matter of law, Petitioner was unable to make out a prima facie

case under McDonnell Douglas, because he was replaced by an

employee who was not significantly younger than Petitioner.

2. Whether the Sixth Circuit Court of Appeals, in claims

brought under the Ohio anti-discrimination statute, Ohio Rev.

Code Ann. § 4112.02 and Ohio Rev. Code Ann. § 4112.99,

was required to apply Ohio law rather than federal law in

determining whether Petitioner had stated a prima facie claim

of age discrimination, where Ohio law differed from federal law

in that regard.

3. Whether discriminatory comments and actions may still

constitute direct evidence of age discrimination,

notwithstanding that they occurred two years earlier than the

adverse action of which the employee complains, and

notwithstanding the fact that they occurred under the aegis of a

different business unit leader who made the ultimate

determination to take the adverse action, where the company

officials who made the discriminatory remarks and who were

involved with the discriminatory actions were also involved in

the adverse action taken against the employee.

4. Whether the modifications or clarifications to Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), set forth in

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), apply to age

discrimination cases.

PARTIES TO THE PROCEEDING

Petitioner is Samuel Bolander. He was Plaintiff im the District

Court and Appellant in the Court of Appeals.

Respondents are BP Oil Company, BP Products North America

Inc., and BP Retirement Accumulation Plan.

ii

TABLE OF CONTENTS

Page

Question Presented..........s:ssssssssssnsensenssnsenesnnennennnnnssens i

Parties to the Proceeding...........scsssesseesennenesrensennens ii

Table of Authorities..............:-sscsseeeeeeeeeenenees Nile Vv

Opinions Below.........-sssssssssssssssssneessssnnsennennnensnssnnssnnns l

Jurisdiction............c.scescsssseserserseseeeesereerensenennennsnnennenes l

cael and Statutory Provisions Involved...... l

Statement............:c-.ccssssssseceeerssnssessereensensennenseenennennenees 2

1. Statutory background............-sssssssesseseserenenenees 3

Il. Factual Background.............ssssssssseseeeeesrerenees 4 ¢

Ill. Proceedings Below............-:-s-sssssssssssessssenenenens 10

Reasons for Granting the WTit .........-:-ssssssssssereerenenens 13

This court should resolve the propriety of rigid

formulations adopted by the sixth circuit and by

iii

This court should resolve uncertainty among

the several circuits as to whether the standard

for making out a prima facie case of

discrimination is a matter of procedural or

substantive law under the Erie doctrine................

This court should correct the sixth circuit’s

refusal to consider prior discriminatory

comments and actions as direct evidence

of age discrimination, where they occurred

under the aegis of different higher management,

but where the responsible actors were also

involved in the adverse action taken against

i iscehitcescniniiaeitidinieiigchabeaipeciinithiimanadicasaiuihiins

This court should resolve the uncertainty among

the courts of appeal as to whether the

modification to Price Waterhouse set forth

in Desert Palace, Inc. V. Costa, 539 U.S. 90

(2003), applies to age discrimination cases..........

it lincciniicocescsicnsehtsoiisdsishicnansicentacabdcanntdbeesaddiinadas

Contents of Appendix

Appendix A (Court of Appeals Opinion)

Greeny 0G Bile iettisiln a

Appendix B (District Court Opinion)

| er er ence Le

Appendix C (Ohio Rev. Code Ann. § 4112.02)...

iv

TABLE OF AUTHORITIES

: Page(s)

CASES

Bergene v. Salt River Project Agric.

Improvement & Power Dist., 272 F.3d 1136

; (Sth Cir.2001).....sssecssseccssseeseesneeeeeesseesenssnesesen 22

‘ Begnal v. Canfield & Associates, Inc.,

; 78 Cal.App.4th 66, 92 Cal.Rptr.2d 611

(Cal. App. 1 Dist. 2000).......:-:-ssssessereeersenees 16

Bourbon v. Kmart Corp., 223 F.3d 469

(7th Cir. 2000)......csecscsessseeseseceeensensnsenensesenes 20

Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003).......scececseseeeeseesseeeesennsenees 3,14

23-25

Douglas v. Anderson, 656 F.2d 528

(C.A.Cal. 1981).....scsesecsesesecessessenensnrenessensnenees 17

Erie R. Co. v. Tompkins, 304 U.S. 64,

58 S.Ct. 817, 82 L.Ed. 1188........ececeeeeeees 14,20

Furnco Constr. Corp. v. Waters (1978),

438 U.S. 567, 98 S.Ct. 2943,

57 L.Ed.2d 957....:ccccessccsesssseercesecsssesseneeeeseeeees 14,15

Gagne v. Northwestern Natl. Ins. Co.,

881 F.2d 309 (6th Cir.1989)...1.....eccecereereeees 24

Grabosky v. Tammac Corp., 127 F.Supp.

Vv

BE GEO COED. FU, Bese piccctnsctinscinninensdentscsenss 15

Greene v. Safeway Stores, Inc., 98 F.3d 554

fe RR i en ee 17

Griffin v. Washington Convention Center,

142 F.3d 1308 (D.C. Cir. 1998)..................... 22

Grosjean v. First Energy Corp., 349 F.3d 332... 2,16,

21

Hartley v. Wisconsin Bell, Inc., 124 F.3d

he Ls A, | ee. ree eee 17

Haskell v. Kaman Corp., 743 F.2d 113

CIE Cts Pe eiincsccveecscivnsstetaniantidinissateh dies 17

Hill v. Lockheed Martin Logistics Mgmit., Inc.,

354 F.3d 277 (4th Cir.2004)....... cece eee 24

Hipp v. Liberty Nat. Life Ins. Co., 973 F Supp.

RGSS COGEA PUR Be epeateithiescistaleiicciitisiibisididlen 17

Hoffmann v. Primedia Special Interest

Publications, 217 F.3d 522 (7th Cir. 2000)... 16,17

Kline v. Tennessee Valley Authority, 128 F.3d

SOT COU GAR. FG Pickaicicisisidiensisnsinuniniciacnnill 24

Loeb v. Textron, Inc., 600 F.2d 1003

CGE CaP. Fy 6 a iicniinecciieehinhiccrntaieebiaceitinaslandaameniet liad 17

Manzer v. Diamond Shamrock Chemicals

Co., 29 F.3d 1078 (6th Cir. 1994)......000000000.. 24

vi

Mauzy v. Kelly Services, Inc. 75 Ohio St.3d

578, 664 N.E.2d 1272 (1996). ......:ceeccceeseeees

McDonnell Douglas Corp. v. Green (1973),

411 U.S. 792, 93 S.Ct. 1817,

9G LE.20 GBB ...ccococcsscsccsesccesccscccsoscssceccsocosse

O’Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 308, 116 S.Ct. 1307,

134 L.Ed.2d 433 (1996)..........cccscsseeeeeeeeeeeenees

Ohio Civil Rights Comm. v. Harlett (1999),

132 Ohio App.3d 341, 724 N.E.2d 1242.......

Ostrowski v. Atlantic Mut. Ins. Cos., 968

F.2d 171 (2d Cir.1992).........ccsccseereereeerseenees

Perry v. Woodward, 199 F.3d 1126

(10th Cir. 1999).......ccccesseseseseersesnenensneneneneneess

Plumbers & Steamfitters Jt. App. Committee

v. Ohio Civil Rights Commission (1981),

66 Ohio State 2nd 192 .........-ccceeeeeeeeerenrenenees

Price Waterhouse v. Hopkins, 490 U.S. 228,

109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).......

Rachid v. Jack In The Box, Inc., 376 F.3d 305

(Sth Cir. 2004)........scsesecsessesesnssnsnensnsnsnsnsnsess

Rose v. New York City Bd. of Educ., 257

F.3d 156, 162 (2d Cir.2001)..........-.++-. alabia

vii

2,19

22

15

22

Snead v. Metropolitan Property & Cas. Ins.

Co., 237 F.3d 1080 (9th Cir. 2001)................

Stacks v. Southwestern Bell Yellow Pages, Inc.,

27 F.3d 1316 (8th Cir. 1994)... eeceeeceseees

Trammel v. Simmons First Bank of Searcy,

345 F.3d 611 (8th Cir.2003).............00 cece

Walden v. Georgia-Pacific Corp., 126 F.3d 506

CG Ge Fa atacisttta ca dacttigesesesicntiiabltiedibioniash

Warren v. Terex Corp., 328 F Supp.2d 641

Ee BUS: FIO cachiahesihennsdenticmnaeniiannnisnniine

STATUTES

Ohio Rev. Code Ann. § 4112.02.00... eee

viii

20

22

OPINIONS BELOW

The opinion of the Court of Appeals (App. A) is unreported,

2005 WL 332426.

The opinion of the District Court (App. B) is unreported,

2003 WL 22060351.

BASIS FOR JURISDICTION

The judgment of the Court of Appeals was entered on

February 10, 2005.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The statutes involved are Ohio Rev. Code Ann. § 4112.02

and Ohio Rev. Code Ann. § 4112.99. Section 4112.02 is

reproduced in the appendix.

Section 411 2.99 provides as follows:

Whoever violates this chapter is subject to a civil action

for damages, injunctive relief, or any other appropriate

relief.

Fe ee ee

STATEMENT

This case presents questions of broad importance to the

enforcement of age discrimination laws, and points out the need

to allow District Courts the flexibility to recognize and to

address discrimination in circumstances not amenable to rigid

and mechanical application of the framework within which

discrimination cases are analyzed . The case also reflects special

problems in holding employers liable for discrimination which

may occur during a time of rapid management change.

In Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th

Cir.2003), the Sixth Circuit adopted a rigid rule that as a matter

of law, a plaintiff cannot establish a prima facie case of age

discrimination under the three-part burden-shifting test

established in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), if he was not

replaced by a person at least six years his junior. While

Grosjean \eft open the possibility that a plaintiff replaced by a

person less than six years his junior might still prove age

discrimination by means of direct evidence, the court in the

instant case refused to consider Petitioner’s direct evidence of

discrimination because the ultimate decision maker at the time

of the events which gave rise to that evidence was not the

ultimate decision maker at the time Petitioner was terminated.

The rigidity of the Sixth Circuit’s approach to age

discrimination cases is in conflict with this Court’s frequent

recognition that the McDonnell Douglas framework was

“never intended to be rigid, mechanized, or ritualistic,” and is

in conflict with the Ohio Supreme Court’s holding in Mauzy v.

Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d

1272, 1273, 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.” Unfortunately, the court

never addressed the Ohio Supreme Court’s holding in Mauzy,

in spite of the fact that the complaint was brought under Ohio

2

anti-discrimination law rather than under the ADEA. The court

also declined to decide whether the mixed-motive

burden-shifting method articulated in Price Waterhouse v,

Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268

(1989) as modified by Desert Palace, Inc. v. Costa, 539 U.S.

90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), applies to age

discrimination cases, because there was not enough evidence,

direct or indirect, that age was "a motivating factor" for

Petitioner’s termination.

A. Statutory Background

The purpose of R.C. 4112.02 is to prevent discrimination.

Ohio Civil Rights Comm. v. Harlett (1999), 132 Ohio App.3d

341, 347, 724 N.E.2d 1242, 1246.

Ohio’s provisions regarding age discrimination are

generally intended to follow federal case law that has developed

under the ADEA. Plumbers & Steamfitters Jt. App. Committee

v. Ohio Civil Rights Commission (1981), 66 Ohio State 2nd

192. If and where Ohio substantive law differs from federal

law, Ohio law applies.

The Ohio Supreme Court has held 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 v. Kelly Services, Inc. 75 Ohio St.3d 578, 664 N.E.2d

1272, 1273 (Ohio,1996). The Ohio Supreme Court has never

adopted a rigid rule that a plaintiff must have been replaced by

an individual any certain number of years younger than the

plaintiff.

B. Factual Background

- Petitioner started working at the Toledo refinery in 1973. JA

273.' He worked his way up to various management and

leadership roles at the refinery. JA 274-275. He was “highly

respected, highly regarded by all refinery employees, top to

bottom.” JA 406.

From 1994 until 1999, Rick Porter was Business Unit

Leader (“BUL”) at the Toledo refinery. JA 378. The BUL was

the highest ranking person at the refinery. JA 364. At the time

Porter took over as BUL, it was owned by British Petroleum

(“BP”). In 1998, BP merged with Amoco. BP North America,

Inc., currently operates the refinery.

Ken Panozzo started out at the Toledo refinery as

maintenance manager, and then became asset manager. JA 362-

262. He reported directly to the BUL. JA 364. Alan Clink

reported directly to Panozzo. JA 365.

Panozzo was employed at Toledo refinery from about

October 1999, until about September 1, 2002. His first six or

seven months was spent as a maintenance manager, and then he

became an asset manager. JA 361-362. He testified that he may

have facilitated Petitioner’s termination. Specifically, he had

several “talking points” that he had prepared to explain why

Petitioner was being terminated. JA 366-368.

Thomas Moroni, Turnaround Superintendent at the refinery,

stated that from time to time Panozzo would consult with him

concerning various personnel issues in the maintenance

department, and that Panozzo on several occasions referred to ~

Petitioner as being part of the “old guard.” This was clearly said

in a non-complementary critical fashion. Additionally, on

several occasions Panozzo told Moroni in approving fashion

that there was a “younger and more dynamic way of doing

1. Citations (JA) are to the joint appendix filed with the

Court of Appeals.

things” at the Toledo refinery. He also told Moroni on several

occasions that he liked some of the younger engineers at the

Toledo refinery because they were “younger and energetic.” JA

247.

Among Panozzo’s activities was reviewing and establishing

pay grades. JA 370-372. Panozzo and Alan Clink were heavily

involved in the purported investigation of certain safety

violations allegedly committed by Petitioner, and in the writing

of an October 4, 2000 warning letter. JA 114-115. Clink

prepared Plaintiff's March, 2001 performance evaluation. JA

115-116.

In November 1999, Jeanne Johns replaced Rick Porter as

the BUL. Ken Panozzo became maintenance superintendent. In

November, 2001, Pat Gower replaced Jeanne Johns as BUL.

In early 2000, several months after the new management

team of Jeanne Johns and Ken Panozzo had been installed,

Petitioner was given a performance appraisal. The appraisal was

substandard, and did not accurately reflect Petitioner’s

performance. JA 311.

In the middle of March, 2000, Petitioner was reduced in

grade from a 21 down to a 19, and was subsequently changed

to a grade H under the new grading system. JA 330. After

Petitioner applied for and was denied the position of asset

coordinator, Alan Clink, who along with Panozzo participated

in the managerial selection process, approached Petitioner to

find out what Petitioner was going to do. The position of

maintenance supervisor came up and Petitioner indicated that

because the position would result in another demotion, which

Petitioner wanted to avoid, he was reluctant to take such a

position. JA 332.

On September 1, 2000, Petitioner learned for the first time

that there purportedly was an issue involving safety violations.

JA 341-342. A few days later he was offered a maintenance

supervisor job, at a further reduced grade. JA 343-344. From

that time until he was terminated his salary was frozen. JA 345-

346.

4

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In October, 2000, Petitioner received a disciplinary action

which alleged that Petitioner of had been guilty of 3 safety

interactions in the past. One of the alleged violations involved

confined space requirements, another involved alleged

scaffolding requirements, and the third allegation involved an

alleged failure to use fresh air in connection with the repair of

a leak. JA 280-281. The letter indicated that further safety

violations would result in additional disciplinary consequences,

up to and including termination. JA 282.

In his deposition, Petitioner provided evidence from which

a jury could reasonably find that the alleged safety incidents

which purportedly led to Petitioner receiving a disciplinary

warning letter were not safety violations at all, and that the

accusations were made simply to begin building up a case

against Petitioner in the eventuality of his ultimate termination.

For example, with regard to what Respondents referred to in

their Motion for Summary Judgment as an incident when

Petitioner allegedly did not wear “fresh air” when he should

have, the incident involved an emergency, where Petitioner

took emergency steps to stop a flare header leak. While a work

permit was later prepared, which required respiratory

protection, that permit had not been prepared yet when

Petitioner repaired the leak. JA 285-286. Respondent accused

Petitioner of failing to wear a body harness on a scaffold, but in

fact he was not required to wear a harness because the scaffold

was fully OSHA-compliant. JA 283.

Respondent accused Petitioner of entering a vessel without

a respirator, but as the entry supervisor on that date, he had the

right to challenge respiration requirements at any time.

Additionally, Petitioner had the operating supervisor with him

at the time, who was ultimately responsible for making the

decision whether respiratory protection was required or not, and

who in fact entered the vessel with Petitioner, thus implicitly

determining that respiratory protection was not required. JA

324-326.

With regard to the April 1, 2002, alleged confined space

violation which purportedly caused Petitioner to be terminated,

the incident consisted of Petitioner placing his head and one

shoulder past the plane of the vessel body for about 30 seconds.

JA 291-296. As the entry foreman, he could assume the right to

act as a hole watch. Since he was not going inside to perform

work, he could perform the job of a working hole watch, who

was expected to reach in and out of confined spaces. Thus

Bolander was doing nothing any different than what hole

watches were expected to do. JA 297.

On April 1, 2002, without the presence of a “hole watch,”

Petitioner briefly broke the plane of a permitted confined space

with his head and one shoulder, to observe whether the vessel

had been cleaned. JA 289-291, 293. Entry into a permitted

confined space to perform work or other activities in the space

required that an attendant (“hole watch”) be present to watch .

out for people in the vessel. JA 300-301. However, it was

common practice for operations foremen and maintenance

foremen to just briefly look inside the vessels without requiring

the presence of a hole watch. JA 251, 290, 305, 432.

Furthermore, as the executing authority or entry foreman,

Petitioner was entitled to assume the role of hole watch. JA

297. Hole watches were expected to reach in and out of the

confined spaces, and to make contact or communicate with the

people inside. JA 297, 302. The confined space policy does not

state that a hole watch is required anytime the plane is broken.

JA251, 299.

On April 16, 2002, Petitioner was terminated from his

position at the refinery, ostensibly as a result of the above,

alleged safety infraction. JA 287.

Prior to deciding to terminate Plaintiff, Patrick Gower

consulted with, among others, Alan Clink and Kenneth

Panozzo. JA 111.

Robert Sauer has been employed at the Toledo refinery for

25 years. Since January, 2002, he has been a safety adviser, and

prior to that was a maintenance supervisor. JA 408. He testified

that after Amoco merged with BP, the personnel grading system

was converted from BP grades to Amoco levels. He and other

older employees were placed in levels which represented a

demotion from their prior grades, while younger employees

were placed in levels which represented promotions from their

prior grades. JA 395-396.

Petitioner presented evidence, in the form of affidavits and

depositions of numerous witnesses, that Petitioner was a highly

respected employee. JA 401, 406. On the other hand, Panozzo’s

reputation among refinery employees was that he was a liar, that

he did not appear to have much maintenance experience, and

did not appear to know how to go about getting work done. JA

407.

Petitioner also presented evidence that Alan Clink, who

became maintenance superintendent in 1999, and Ken Panozzo,

repeatedly referred to certain people as the “old guard.” JA 402,

‘403, 405. Panozzo also often talked about seeking “young,

energetic engineers” for positions. JA 409. On at least one

occasion, Panozzo made such a comment with regard to the

position of maintenance department “asset coordinator,” which

both Robert Sauer and Petitioner applied for but were denied.

JA 410. The three available positions for maintenance

department asset coordinator were all filled by employees

considerably younger than Sauer and Petitioner. JA 411.

The three persons selected from the maintenance group to

be asset coordinators were Doug Powell, Dave Kurt, and Doug

Schwartz. JA 421. Doug Powell is in his mid-30s, Doug

Schwartz is about 35-40 years old, and Dave Kurt is about 35-

38 years old. JA 352, 369, 373.

James Thomas, a 27 year employee at the refinery, testified

that he was surprised when Powell, Kurt, and Schwartz were

selected over Petitioner and Bob Sauer, because Petitioner and

Sauer better fit the position. JA 422. During the 2000

reorganization, Thomas applied for the position of asset

superintendent, which is a higher position than asset

coordinator. JA 425, 426. However, he lost out on the position

to Rick Taylor, even though Thomas was the better qualified

person. JA 426-427. Taylor is in his thirties. JA 426); Thomas

is 48 years old. JA 419. The person who made that decision was

Bob Wallace, who is in his early or mid-thirties. JA 427-428.

Sauer testified that Petitioner was an extremely safe worker,

that he was very knowledgeable in refinery hazards, and that he

always took proper steps to eliminate hazards. JA 412. Sauer

considered Petitioner to be “a leading authority” in the confined

space procedure. Jbid.

Prior to Petitioner’s termination, it was “an accepted and

common practice at the refinery to look inside permitted

confined spaces without an attendant present,” and maintenance

and operations supervisors routinely did so. JA 413-414. Sauer,

a refinery safety adviser, testified that he was familiar with the

OSHA regulations concerning confined space, and under those

regulations, Petitioner had the authority to look inside the vessel

without a hole watch present. JA 415-416.

Ken Panozzo himself testified that hole watches hand tools

inside confined spaces as part of their normal activities. JA 376.

During the time that Thomas Moroni was at the Toledo

refinery, up to the time he left in July 2000, it was normal

practice for managers to break a fully permitted confined space

(breaking the plane) without a hole watch present. He himself

did on anumber of occasions, as recently as 1999. He described

the practice of managers taking a cursory view of the interior of

the vessel to ensure that no contaminants or other debris had

been left inside prior to closure. He is not aware of anyone

having been disciplined for doing this, other than Petitioner.

9

Moroni stated that had someone been disciplined for doing this,

he would have known about it, because there would have been

an incident report which would have been widely distributed, it

would, have been discussed at mandatory safety meetings, and

it was part of his job to be aware of safety violations. JA 247-

248.

Earl Gilbert, age 62, testified by affidavit that in 2000, he

applied for the position of Superintendent of Project

Engineering and Turnaround. He was not selected for the

position, but Ted Spidle, who was in his mid-40s, was selected.

JA 249. Gilbert was far better qualified for the position than

Spidle, with far more relevant experience. JA 249, 250. He

retired at the end of 2000, shortly after his non-selection,

because no other opportunities were open to him, except

demotions. JA 250.

On about September 13, 2000, Alan Clink hinted to

Petitioner that had he taken the maintenance position when it

was first available, this safety issue would probably never have

arisen. JA 346-347. Additionally, on or about October 5, 2000,

Petitioner met with Ken Panozzo to talk about the discipline

letter he had received on or about October 4. Panozzo told him

that if he had taken the maintenance supervisor position on the

third round of postings, which occurred July 13, 2000, the

safety infractions would never have come up and there would

have been no discipline letter. JA 246, 348-349.

Petitioner submitted expert testimony in the form ofa report

by Dr. Malcolm S. Cohen, Ph.D., consisting of a statistical

analysis of demotions and salary of Toledo refinery employees

by age. Dr. Cohen compared employees under age 40 to those

age 40 and over with regard to demotions in 2000 and salary

increases for the years 2000 and 2001. JA 168. The report

showed that in the year 2000, 25 of 129 employees over 40

were demoted as compared to none of the 36 employees under

age 40. /bid. Dr. Cohen found that there are only 3 chances out

of 1000 that all 25 of the demotions would be among persons

over the age of 40. /bid.

10

C. Proceedings Below

1. This case was originally filed by Petitioners in the Court

of Common Pleas of Lucas County, OH. The case was removed

to the United States District Court for the Northern District of

Ohio, Western Division, by Respondents. The alleged bases for

jurisdiction, which were not contested by Petitioner, were that

1) Petitioner resided in Ohio while Respondent BP Oil

Company was a nonexistent entity, BP Products North

America, Inc., was a corporation incorporated under the laws of

the State of Maryland, with its principal place of business in

Chicago, Illinois, and BP Retirement Accumulation Plan was

an employee benefits plan with its principal place of business

in Chicago, Illinois, and that 2) one of Petitioner’s claims,

which alleged violation of the Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. § 101 et seq., arose

under federal law, and the amount in controversy exceeded

$75,000 exclusive of interest and costs. Consequently,

jurisdiction in the District Court was appropriate both on the

basis of diversity of citizenship, 28 U.S.C. § 1331, and federal

question jurisdiction, 28 U.S.C. § 1332.

The Complaint comprised an age discrimination claim

pursuant to Ohio Rev. Code Ann. §§ 4112.02(N) and 4112.99,

a claim for retaliation pursuant to Ohio Rev. Code Ann. §

4112.99, a common law claim for intentional infliction of

emotional distress, and an ERISA claim pursuant to 29 U.S.C.

§ 101 et seq. After a period of discovery, Respondents filed a

Motion for Summary Judgment on June 4, 2003. Following

responsive briefing, the District Court granted Respondents’

motion on August 6, 2003.

11

The District Court held that Petitioner could not establish a

prima facie case because he was replaced by an individual only

two or three years younger than himself, and such a narrow

difference did not satisfy the necessary “substantially younger”

or “significantly younger” criterion.

The court also held that Respondents articulated a legitimate

reason--Petitioner’s alleged noncompliance with an important

safety regulation. The court rejected Petitioner’s evidence that

other employees had committed similar infractions in the past

without being disciplined, on the basis that the prior incidents

had occurred under a different plant manager.

Finally, the court rejected Petitioner’s alternative reliance

upon the “mixed motives” rationale of Desert Palace, Inc. v.

Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003), on the asserted

basis that the mixed motives rationale and Desert Palace did

not apply to age discrimination cases.

A Notice of Appeal was timely filed on September 3, 2003.

2. A unanimous panel of the Sixth Circuit (Boggs, Guy,

and Steeh, United States District Court for the Eastern District

of Michigan, sitting by designation, JJ) affirmed. The court held

that under the Sixth Circuit’s recently issued decision in

Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th

Cir.2003), an age difference of less than six years was, as a

matter of law, insufficient to establish a prima facie case of age

discrimination. (Grosjean was decided during the briefing of

this case, between the filing of Petitioner’s Appeal Brief and

Respondents’ Brief, and thus both Petitioner and Respondent

were able to brief the issue, Petitioner doing so in his Reply

Brief). Grosjean provided that direct evidence could still be

used to prove a case of discrimination even in the absence of

replacement by a substantially younger worker. However, in the

instant case, the court held that Petitioner’s direct evidence of

age discrimination, consisting of ageist comments and a

statistical study demonstrating that older workers were demoted

at a vastly disproportionate rate over younger workers, did not

12

provide direct evidence that Petitioner’s termination was direct

evidence of discrimination against Petitioner.

Finally, the court held that, even if age discrimination

complaints could be analyzed under the modified Price

Waterhouse mixed-motive burden-shifting method articulated

in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148,

156 L.Ed.2d 84 (2003), there was not enough evidence, direct

or indirect, that age was “a motivating factor” for Petitioner’s

termination. This was so, said the court, because 1) Petitioner

was fired for a safety violation, and, again, Petitioner’s direct

evidence of discrimination occurred under a previous business

unit leader. The court specifically declined to determine

whether Desert Paiace applied to age discrimination cases.

REASONS FOR GRANTING THE PETITION

In O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), and in

Furnco Constr. Corp. v. Waters (1978), 438 U.S. 567, 577, 98

S.Ct. 2943, 57 L.Ed.2d 957, this Court declined to impose a

rigid formulation upon the burden shifting framework of

McDonnell Douglas, because that framework was “never

intended to be rigid, mechanized, or ritualistic.”

Some other circuit courts have recognized this Court’s

eschewal of a rigid and ritualistic approach to age

discrimination cases, but the Sixth Circuit has adopted an

approach contrary to the words and spirit of O’Connor and

Furnco, by holding that, as a matter of law, an age

discrimination plaintiff cannot make out a prima facie case if he

cannot show that he was replaced by an employee at least six

years his junior.

13

The Ohio Supreme Court has also eschewed a rigid

approach to age discrimination cases under Ohio Rev. Code

Ann. § 4112.02, the statute under which the instant case is

brought, but the Court of Appeals failed to acknowledge the

Ohio Supreme Court’s controlling law.

This Court’s review is warranted to reaffirm or clarify the

principles set forth in O’Connor and Furnco, and to resolve the

circuit conflict over this issue. The Court’s review is further

warranted to resolve uncertainty among the several circuits as

to whether the standard for making out a prima facie case of

discrimination is a matter of procedural or substantive law

under the Erie doctrine. Finally, this court should resolve the

applicability of Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003), to age discrimination cases.

1. THIS COURT SHOULD RESOLVE THE

PROPRIETY OF RIGID FORMULATIONS

ADOPTED BY THE SIXTH CIRCUIT AND BY SOME

OTHER CIRCUITS, UNDER WHICH, AS A MATTER

OF LAW, A PLAINTIFF IS UNABLE TO MAKE OUT

A PRIMA FACIE CASE OF AGE DISCRIMINATION

IF HE HAS NOT BEEN REPLACED BY AN

EMPLOYEE AT LEAST A FIXED NUMBER OF

YEARS YOUNGER THAN THE PLAINTIFF.

In O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), this

Court dealt with the question of whether it was necessary that

the replacement worker in an age discrimination case be outside

the protected class, that is, younger than 40. As noted by one

federal District Court, while reasoning that “the fact that a

replacement is substantially younger than the plaintiff is a far

more reliable indicator of age discrimination than is the fact that

the plaintiff was replaced by someone outside the protected

class,” id. at 313, 116 S.Ct. 1307, the Supreme Court in

O’Connor did not hold that replacement by a younger person

14

was an essential component of a prima facie age discrimination

case. Instead, it found “the proper solution” to be that a plaintiff

present “‘evidence adequate to create an inference that an

employment decision was based on a[n] [illegal] discriminatory

criterion...” Grabosky v. Tammac Corp., 127 F.Supp.2d 610,

620 (M.D. Pa. 2000), citing O’Connor at 312, 116 S.Ct. 1307.

This recognition is in line with the Court’s holding in

Furnco Constr. Corp. v. Waters (1978), 438 U.S. 567, 577, 98

S.Ct. 2943, 57 L.Ed.2d 957, that the McDonnell Douglas

framework was “never intended to be rigid, mechanized, or

ritualistic.” Requiring a terminated plaintiff to show

replacement by a younger person in every case is a mechanistic

and ritualistic approach that may serve to defeat otherwise

meritorious claims. This is so because “[t]he replacement of a

terminated plaintiff with an individual who shares the plaintiff's

protected attribute does not necessarily negate the inference that

the plaintiff was unlawfully discriminated against.” Perry v.

Woodward, 199 F.3d 1126, 1138 (10th Cir.1999), cert. denied,

529 U.S. 1110, 120 S.Ct. 1964, 146 L.Ed.2d 796 (2000).

Other circuit courts have recognized this Court’s eschewal

of a rigid and ritualistic approach to age discrimination cases,

but the Sixth Circuit has adopted an approach contrary to the

words and spirit of O’Connor and Furnco. In Grosjean v. First

Energy Corp., 349 F.3d 332, the court concluded as a matter of

law that “in the absence of direct evidence that the employer

considered age to be significant, an age difference of six years

or less between an

employee and a replacement is not significant.” Grosjean at

340.

Other circuits have stated that under some circumstances,

replacement by an insignificantly younger worker, or even an

older worker, is not inconsistent with age-based motivation.

After all, where a terminated older worker is replaced with

another older worker from within the company, the company

has still rid itself of one older worker. This does not mean, of

course, that older workers can never be terminated, or that

replacement by another older worker in and of itself gives rise

to an inference of age discrimination; it only means that such

replacement does not in and of itself negate the possibility of

age discrimination. O’Connor did not hold that a showing of a

significant age difference was the only way to establish a prima

facie case, and did not address the question whether evidence

that the employee was replaced by an older person, within the

protected class would preclude any inference of age

discrimination once the issue is submitted to the trier of fact.

As a California state court observed, it is one thing to say

that evidence that an employee is replaced by a substantially

younger person permits the inference that the termination was

based upon age, but it “is quite another proposition to hold that

evidence that an employee is replaced by an older person within

the protected class precludes any inference that an employee is

terminated based upon age, even if the Plaintiff presents other

evidence to support an inference of discrimination.” Begnal v.

Canfield & Associates, Inc., 78 Cal.App.4th 66, 73-74, 92

Cal.Rptr.2d 611, 615-616 (Cal. App. 1 Dist. 2000).

As noted earlier, some circuits have refused to set arbitrary

bars to relief in the form of fixed age differentials. For example,

in Hoffmann v. Primedia Special Interest Publications, 217

F.3d 522 (7th Cir. 2000), the Seventh Circuit Court of Appeals

noted that “[t[here may be situations where a difference of less

than ten years is substantial,” and that “[i]n cases where the

16

disparity is less, the plaintiff still may present a triable claim if

she directs the court to evidence that her employer considered

her age to be significant.” Hoffmann at 524-525, citing Hartley

v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir.1997).

The Second Circuit has also recognized that failure to be

replaced by a significantly younger person does not absolutely

preclude the formation of a prima facie case:

Replacement of a 60 year old by a 35 year old or even

a 45 year old within the protected class would be more

Suggestive of discrimination than replacement of a 45

year old by a 42 year old within the protected class or by

a 39 year old outside it. Replacement by someone older

would suggest no age discrimination but would not disprove it

conclusively.

Haskell v. Kaman Corp., 743 F.2d 1 13, 122 (2nd Cir.

1984).

In Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir.

1979), the court pointed out that “(replacement by someone

older would suggest no age discrimination but would not

disprove it conclusively. The older replacement could have

been hired, for example, to ward offa threatened discrimination

suit.”

The Tenth Circuit made a similar point in Greene v.

Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir. 1996): “This

judicial position ... makes sense in a situation where an older

replacement is hired in an effort to make the defendant’s

employment practices look better to avert a threatened

discrimination suit.”

Similar statements can be found in Douglas v. Anderson,

656 F.2d 528, 533 (C.A.Cal., 1981), and Hipp v. Liberty Nat.

Life Ins. Co., 973 F.Supp. 1033, 1041 -1042 (M.D.Fla.1997),

where the court held that replacement of the older worker with

another worker 14 years his senior did not, by itself, preclude

the terminated worker from presenting a prima facie case of age

discrimination.

17

Thus the Sixth Circuit’s rigid six-year rule is in conflict

with the law of several other circuits.

Besides resolving a conflict between the circuits, this Court

can inject an element of workplace reality missing from those

circuits which have imposed rigid age differential requirements.

While the Sixth Circuit’s “six years or out” rule has the

advantage of clarity, it fails to recognize exactly that which

some other circuits have recognized: namely, that replacement

of an older worker by a worker only slightly younger, or even

older, than the terminated worker, still removes an older worker

from the workforce and results in a younger workforce. Over

time, as older workers are terminated, almost-as-old workers

are moved up, and new, younger employees are brought in at

the bottom, the employer may accomplish with patience that

which would be easily recognizable as a discrimination were it

to occur all at once. The problem is exacerbated when, as is

often the case in industry, managers with hiring and firing

authority change over relatively short periods of time. As is

discussed below, that was the case with which Petitioner was

confronted, in that much of the direct evidence of

discrimination consisted of incidents which took place under

the leadership of one business unit leader, but the culminating

act took place under the leadership of her successor.

Because the Court of Appeals applied a rigid and

mechanical standard in determining that Petitioner, as a matter

of law, could not make out a prima facie case of age

discrimination, contrary to the frequent admonition of this

Court to avoid such rigidity, further review by this Court is

warranted.

18

2. THIS COURT SHOULD RESOLVE UNCERTAINTY

AMONG THE SEVERAL CIRCUITS AS TO

WHETHER THE STANDARD FOR MAKING OUT A

PRIMA FACIE CASE OF DISCRIMINATION IS A

MATTER OF PROCEDURAL OR SUBSTANTIVE

LAW UNDER THE ERIE DOCTRINE.

Before both the District Court and the Court of Appeals,

Petitioner argued that the court should apply the standard for

making out a prima facie case of discrimination as set forth by

the Ohio Supreme Court in Mauzy v. Kelly Services, Inc.

7(1996), 5 Ohio St.3d 578, 664 N.E.2d 1272, 1273, which held

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.” Under this standard, evidence of any

nature, direct or indirect, including circumstantial evidence,

may be presented by the plaintiff to establish his prima facie

case, and Petitioner would not have been required show that he

was replaced by a significantly younger worker.

Both Petitioner and Respondent fully briefed the

applicability of Mauzy to the case, Respondent arguing hat

Mauzy would not apply in the federal courts because age

discrimination analysis is procedural, rather than substantive,

law. In spite of the fact that before both courts, the issue was

extensively briefed by both Petitioner and Respondent, neither

court even mentioned Mauzy, but analyzed the case strictly

under federal law.

The Court should review the Sixth Circuit’s decision to

analyze Petitioner’s prima facie case under federal law rather

than state law, because it appears that, with the possible

exception of the Ninth Circuit, “[nJo circuit has squarely

decided whether a state’s application of an alternative to the

McDonnell Douglas burden-shifting scheme is “procedural” or

19

PM Silt ib te vee ay -

“substantive” under the Erie doctrine.” Snead v. Metropolitan

Property & Cas. Ins. Co., 237 F.3d 1080, 1091 (9th Cir. 2001).

Furthermore, those courts which have made an assumption in

one direction or the other, have generally assumed it to be a

substantive matter of state law: “Our sister circuits have

assumed * * * that state law, not federal law, governs the

burden-shifting standard applicable to cases in which the rule

of decision is state rather than federal. These cases do not

discuss the choice of law issue; they merely take for granted

that the McDonnell Douglas standard is substantive for Erie

purposes * * * .” Bourbon v. Kmart Corp., 223 F.3d 469, 474

(7th Cir. 2000), Posner concurring and citing numerous federal

cases.

In Snead, supra, the Ninth Circuit arguably has held that the

McDonnell Douglas standard is procedural for Erie purposes.

However, the choice before the Ninth Circuit, which very

directly influenced its analysis, was not between McDonnell

Douglas and an alternative state analog, but between

McDonnell Douglas and a state summary judgment standard

which required automatic denial of summary judgment once the

plaintiff established a prima facie case. The court held that

because the Oregon courts would then simply apply the

McDonnell Douglas standard at trial, the outcome for any case

that would be dismissed in federal court under the McDonnell

Douglas standard, would result in a nonsuit or JNOV at the

close of the plaintiff's case. The court also found that applying

the state summary judgment standard instead of the McDonnell

Douglas standard would impose an unreasonable burden on the

federal courts.

Because the federal courts are split on the question of

whether the McDonnell Douglas standard is substantive or

procedural for Erie purposes, and because the Sixth Circuit in

the instant case implicitly answered that question in a way that

puts it at odds with most of the other circuits, further review by

this Court is warranted.

3. THIS COURT SHOULD CORRECT THE SIXTH

CIRCUIT’S REFUSAL TO CONSIDER PRIOR

DISCRIMINATORY COMMENTS AND ACT IONS

AS DIRECT EVIDENCE OF AGE

DISCRIMINATION, WHERE THEY OCCURRED

UNDER THE AEGIS OF DIFFERENT HIGHER

MANAGEMENT, BUT WHERE THE RESPONSIBLE

ACTORS WERE ALSO INVOLVED IN THE

ADVERSE ACTION TAKEN AGAINST THE

EMPLOYEE.

The Court of Appeals acknowledged that under Grosjean,

supra, while Petitioner was precluded from proving a prima

facie case under the McDonnell Douglas test, direct evidence

could still be used to prove a case of discrimination even in the

absence of replacement by a substantially younger worker.

Petitioner presented evidence that Clink and Panozzo made

ageist comments and were involved in the decision-making

process. The court held, however, that because many of the

comments were made almost two years before Petitioner’s

discharge, the comments lacked sufficient connection to the

discrimination alleged by Petitioner to be considered direct

evidence. The court further held that because some of the

references were not used in connecticn with Petitioner’s

discharge, and that no members of the targeted group were

terminated, this evidence also was not direct evidence of

discrimination against Petitioner.

The court rejected Petitioner’s statistical evidence, which

demonstrated a huge disparity between demotions of younger

workers and demotions of older workers, on the basis that the

demotions reflected in the study occurred under the previous

business unit leader, rather than under the leader in charge at

the time of Petitioner’s termination.

As set forth in the factual background, while Patrick Gower

was the formal decision maker, Alan Clink and Ken Panozzo

had significant input into personnel decisions, including the

21

PAA OR Retin ehsycsimte ‘

termination of Petitioner, and their tenure in these positions

spanned the administrations of both Jean Johns and Patrick

Gower. In light of these facts, of which the Court of Appeals

was aware, the primary reason for the rejection of the statistical

evidence, the fact that the demotions occurred under the

administration of Jean Johns, places the Sixth Circuit at odds

with other circuits that have addressed similar circumstances.

For example, the Second Circuit has held that a plaintiff may

establish direct evidence of employment discrimination through

the statements or conduct of a person who lacks formal

authority to hire or fire but who nonetheless influences an

employment decision. Ostrowski v. Atlantic Mut. Ins. Cos.,

968 F.2d 171, 182 (2d Cir.1992); Rose v. New York City Bd. of

Educ., 257 F.3d 156, 162 (2d Cir.2001). In Walden v. Georgia-

Pacific Corp., 126 F.3d 506, 514-15 (3d Cir.1997), the Third

Circuit held that a person is in the decision-making process for

Price Waterhouse purposes when he has direct access to the

formal decision-maker and his discriminatory animus is linked

to the formal decision-maker’s specific decision to fire the

Plaintiff. In Stacks v. Southwestern Bell Yellow Pages, Inc.,27

F.3d 1316, 1323 (8th Cir.1994), the court held that the

discriminatory remarks of a manager, who was the fired

plaintiff's supervisor and who was “closely involved in the

decision-making process,” constituted direct evidence under

Price Waterhouse. Similar holdings can be found in Bergene

v. Salt River Project Agric. Improvement & Power Dist., 272

F.3d 1136, 1141 (9th Cir.2001) and in Griffin v. Washington

Convention Center, 142 F.3d 1308 (D.C. Cir. 1998).

22

As set forth in the factual background, Patrick Gower

consulted with both Clink and Panozzo before terminating

Petitioner. Similarly, Petitioner described an ongoing pattern of

discrimination by Clink and Panozzo which spanned both the

Johns and Gower administrations. In ignoring the close

involvement of Clink and Panozzo in both Petitioner’s

termination and in the events that led up to his termination, the

court set itself against several other circuit courts which have

held that discriminatory actions of persons who influence

formal decision makers may constitute direct evidence of

discrimination.

Because the Court of Appeals’ refusal to consider the

discriminatory actions of persons who influenced the decision

maker in this case was contrary to the holdings of several other

circuit courts, further review by this Court is warranted.

4. THIS COURT SHOULD RESOLVE THE

UNCERTAINTY AMONG THE COURTS OF

APPEAL AS TO WHETHER THE MODIFICATION

TO PRICE WATERHOUSE SET FORTH IN DESERT

PALACE, INC. V. COSTA, 539 U.S. 90 (2003), APPLIES

TO AGE DISCRIMINATION CASES.

Before both the District Court and the Court of Appeals,

Appellant argued that he was entitled to have the evidence

analyzed under both the McDonnell Douglas burden shifting

test and the Price Waterhouse mixed-motive test as clarified or

modified by Desert Palace, Inc. v. Costa, 539 U.S. 90, 93, 123

S.Ct. 2148, 156 L.Ed.2d 84 (2003). Under Desert Palace, a

plaintiff need not offer direct evidence of discriminatory motive

to proceed under a mixed-motive analysis.

The District Court held that Price Waterhouse simply did

not apply to age discrimination cases. The Court of Appeals

23

recognized that Price Waterhouse applied to age

discriminationcases (the court had already held to that effect in

Gagne v. Northwestern Natl. Ins. Co., 881 F.2d 309 (6th

Cir.1989)? and Manzer v. Diamond Shamrock Chemicals Co.,

29 F.3d 1078, 1081 (6th Cir. 1994)). However, the court

declined to decide whether Desert Palace applied, because it

found that in any event there was not enough evidence, direct

or indirect, that age was “a motivating factor” for Petitioner’s

termination. (In addition to rejecting Petitioner’s direct

evidence for the reasons discussed earlier, the court also held

that Petitioner was reasonably terminated for safety violations.

The court did not consider Petitioner’s claim that the alleged

safety violations were either nonexistent or pretextual).

While most courts that have considered the matter have held

that Desert Palace applies to age discrimination cases, e.g.,

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 311 (Sth Cir.

2004), that position does not appear to be held by every circuit.

As noted above, the Sixth Circuit declined to answer the

question. One circuit court has assumed in dictum, without so

holding, that Desert Palace does not apply to ADEA claims.

Hill v. Lockheed Martin Logistics Mgmt., Inc. , 354 F.3d 277,

284-85 n. 2 (4th Cir.2004). Other courts have, like the Sixth

Circuit, specifically declined to decide the question. Trammel

v. Simmons First Bank of Searcy, 345 F.3d 611, 615 (8th

Cir.2003). One district court, citing the District Court’s decision

in the instant case, has predicted that, until this Court decides

2. Overruling on other grounds recognized by Kline v.

Tennessee Valley Authority, 128 F.3d 337, 75 Fair Empl.

Prac. Cas. (BNA) 386, 73 Empl. Prac. Dec. P 45,300, 1997

Fed.App. 0304P (6th Cir.(Tenn.) Oct 15, 1997) (NO.

94-6355), rehearing and suggestion for rehearing en banc

denied (Feb 11, 1998).

24

whether Desert Palace applies to age discrimination cases, the

issue will be “a contentious one.” Warren v. Terex Corp., 328

F.Supp.2d 641, 643 (N.D. Miss. 2004).

In light of the above differences among the circuits as to

the applicability of Desert Palace to age discrimination cases,

a determination by this Court that the lower courts erred in

rejecting Petitioner’s direct evidence, which necessarily will

affect the analysis of the case under either McDonnell Douglas

or Price Waterhouse, should be accompanied by a

determination as to whether Desert Palace is applicable to age

discrimination cases.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted, -

YL

OMAS A‘ SOBECKI

‘811 Spitzer Bldg.

520 Madison Avenue

Toledo, OH 43604-1304

PH: (419) 242-9908

FAX: (419) 242-9937

25 i

APPENDIX A

26

United States Court of Appeals, Sixth Circuit.

Samuel BOLANDER, Pilaintiff-Appellant,

v.

BP OIL COMPANY, et al., Defendants-Appellees.

No. 03-4176.

Feb. 10, 2005.

Background: Former employee sued employer, alleging age

discrimination under the Ohio age discrimination statute,

retaliation under Title VII, and intentional infliction of

emotional distress. The United States District Court for the

Northern District of Ohio granted summary judgment in favor

of the employer, and the employee appealed.

Holdings: The Court of Appeals held that:

(1) employee failed to prove age discrimination;

(2) employee failed to prove causation element of his

retaliation claim; and

(3) there was no evidence of outrageous conduct on the part

of the employer.

Affirmed.

On Appeal from the United States District Court for the

Northern District of Ohio, Western Division.

Thomas A. Sobecki, Toledo, OH, for Plaintiff-Appellant.

27

Gregory T. Lodge, Shumaker, Loop & Kendrick, Toledo,

OH, for Defendants-Appellees.

Before BOGGS, Chief Judge; GUY, Circuit Judge; and

STEEH, District Judge. [FN1]

PER CURIAM.

*] Plaintiff Samuel Bolander appeals from the district court’s

grant of summary judgment in favor.of defendants BP Oil

Company, et al. Bolander’s complaint alleged claims of age

discrimination, retaliation and intentional infliction of

emotional distress. Because we hold that Bolander failed to

State a prima facie case of discrimination, failed to produce

evidence to support an inference of retaliation, and failed to

show extreme and outrageous conduct by defendants to

support his tort claim, we affirm.

I.

Samuel Bolander started working at the Toledo refinery

operated by BP Oil Company (“BP”) and its predecessor on

August 28, 1973. Bolander became a supervisor in the

maintenance department in 1976. Bolander worked his way up

to various management and leadership roles in _ the

maintenance department from 1976 until his discharge in

2002. At the time of his termination, Bolander was 51 years

old.

In 1998, BP merged with Amoco. In November, 1999,

Jeanne Johns became the Business Unit Leader (“BUL”) and

28

Ken Panozzo became the maintenance department manager.

Shortly thereafter, the personnel grading system was

converted from BP grades to Amoco levels. Panozzo

explained that Bolander’s pay grade was reduced because the

pay grade established for his position was not consistent with

comparable maintenance supervisory positions. This change

in pay grade did not result in a change of salary or job duties,

but Bolander considered it a demotion. In March, 2000,

Bolander’s pay grade was reduced again following a

substandard performance appraisal performed by Panozzo.

This second pay grade reduction also did not result in a

decrease in salary.

In the year 2000, most of the management positions were

placed for bid in a process known as “T2K+”. All affected

jobs were declared open and employees were invited to bid on

them. Jobs were available for bid in four different waves. In

the second wave of the T2K+ process, Bolander bid on an

“Asset Coordinator” position. His bid was not successful;

thereafter Panozzo and Alan Clink encouraged him to bid in

the next wave on a maintenance supervisor position. Bolander

initially refused this invitation, considering it to be a

demotion, but he ultimately bid on the position and received

an offer in September, 2000. There was no reduction in

Bolander’s salary, which remained consistent until his

termination.

In August, 2000, in the course of evaluating Bolander for the

T2K+ job bid, it was discovered that Bolander failed to

follow safety procedures on two occasions. Panozzo asked

29

Clink to investigate. Clink spoke to employees involved in

the incidents, and to Bolander. During the investigation, Clink

learned of a third safety incident that occurred in May, 2000.

After concluding his investigation, Clink reviewed the

information he obtained with Panozzo and Human Resources

Specialist Marcene Jackson.

On October 4, 2000, Bolander received a disciplinary action

which alleged that he had been guilty of three safety

infractions in the past. The letter indicated that further safety

violations would result in additional disciplinary

consequences, up to and including termination.

*2 In December 2000, Bolander filed a charge of age

discrimination with the Ohio Civil Rights Commission

(“OCRC”). The charge challenged the denial of the Asset

Coordinator job bid that had occurred the previous summer

during the second wave of the T2K+ process. The charge

alleged Bolander did not receive the job because of his age.

The OCRC investigated, and ultimately dismissed Bolander’s

charge. The OCRC noted that Bolander’s 1999 performance

appraisal was “less favorable” than those of the successful

candidates, and that “four of the seven successful candidates

[for the asset coordinator positions] were members of [the]

protected group.” Bolander requested reconsideration of this

finding, and on November 29, 2001, the OCRC upheld its

original decision.

In November, 2001, Pat Gower replaced Jeanne Johns as

BUL. Gower is two years younger than Bolander. Bolander

30

does not believe Gower ever made any derogatory remarks

to plaintiff about his age. Significantly, Gower considered job

safety to be one of his highest priorities as BUL.

On April 1, 2002, without a “hole watch” (fellow worker

observing him), Bolander placed his head and one shoulder

across the plane of a confined space to observe whether the

vessel had been cleaned. This action violated safety rules and

was observed by three employees of an on-site contractor (the

“Washington Group”). One of the three individuals was Corie

Spurgeon, the Safety Specialist for the Washington Group.

According to Spurgeon, Bolander was inside the confined

space for about two minutes without a hole watch present.

An investigation took place over the next several days.

Human Resources Specialist Jackson, Panozzo, and another

supervisor interviewed several people, including Spurgeon

and Bolander. After the investigation concluded, Jackson

informed the refinery’s Human Resources Manager, Bill

Christensen, of the results. Christensen informed Gower of

the status of the matter. Gower discussed the matter with

several senior managers, including Panozzo and Clink, and

concluded that Bolander should be terminated. Gower

instructec: Christensen and Panozzo to meet with Bolander to

advise him of his termination. Panozzo had several “talking

points” prepared to explain to Bolander that he was being

terminated for safety violations.

In support of his motion for summary judgment, Bolander

submitted testimony from several employees to the effect that

31

it was common practice, for various reasons, to cross the

plane of a confined space without a hole watch present.

Robert Sauer, a refinery safety adviser employed by plaintiff

for 25 years, testified that prior to Bolander’s termination, it

was an accepted and common practice at the refinery to look

inside permitted confined spaces without an attendant present.

Thomas Moroni worked at the refinery from November 1990

until July 2000. He testified it was normal practice for

managers to break a fully permitted confined space without a

hole watch present. He stated that he did it himself as recently

as 1999. Jonathan Parker was an employee in the Health,

Safety and Environmental Department at the refinery from

November 1988 until March 1998. He testified that the

revised confined space entry procedure did not prohibit

qualified persons such as supervisors from briefly breaking

the plane of the permitted confined space, without a hole

watch present, to make a brief visual inspection.

*3 As evidence of age-based animus, Robert Sauer testified

that Alan Clink and Ken Panozzo repeatedly referred to

certain people as the “old guard” beginning shortly after

Panozzo, Pat Ward, and Johns were named to the

reconstituted senior team. The term was targeted at influential

employees who had been there for 20-plus years. Also,

Panozzo often talked about seeking “young, energetic

engineers” for positions. On at least one occasion, Panozzo

made such a comment with regard to the position of “Asset

Coordinator.” Thomas Moroni testified by affidavit that from

time to time Panozzo would consult with him concerning

various personnel issues in the maintenance department. On

32

several occasions Panozzo referred to Bolander as being part

of the “old guard.” On several occasions Panozzo told Moroni

that there was a “younger and more dynamic way of doing

things” at the Toledo refinery. Panozzo also told Moroni that

he liked some of the younger engineers at the Toledo refinery

because they were “younger and energetic.”

After Bolander’s termination, David Murray temporarily

assumed his position. Murray was 59 years old. On May 2,

2002, Dan Waterfield was selected to fill the position on a

permanent basis. Waterfield was 49 years old. Waterfield still

holds the position.

II.

We review the district court’s grant of summary judgment de

novo. Watkins v. City of Battle Creek, 273 F.3d 682, 685

(6th Cir.2001).

Age discrimination cases under the ADEA are analyzed

under the same framework as employment discrimination

cases under Title VII. Grosjean v. First Energy Corp., 349

F.3d 332, 335 (6th Cir.2003). Bolander’s claim in this case

arises under the Ohio age discrimination statute, which

parallels the ADEA analysis. Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 357 (6th Cir.1998). In the

absence of direct evidence of age-based animus, a plaintiff

establishes a prima facie case of age discrimination by

showing (1) he is a member of the protected group, (2) he was

subject to an adverse employment decision, (3) he was

qualified for the position, and (4) he was replaced by a person

33

outside the protected class. Id. “In age discrimination cases,

the protected class includes all workers at least 40 years old

and the fourth element is modified to require replacement not

by a person outside the protected class, but merely

replacement by a significantly younger person.” Id. (citing

Kline v. TVA, 128 F.3d 337, 342 (6th Cir.1997)).

[1] Our recent decision in Grosjean involved age

discrimination claims under federal and Ohio law. The Sixth

Circuit upheld summary judgment on the grounds that the

plaintiff failed to establish a “prima facie case of age

discrimination because he was not replaced by a person

significantly younger than himself.” Grosjean, 349 F.3d at

334. “[T]he prima facie case requires evidence adequate to

create an inference that an employment decision was based on

an illegal discriminatory criterion.” O’Connor v. Consol.

Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134

L.Ed.2d 433 (1996). This “inference cannot be drawn from

the replacement of one worker with another worker

insignificantly younger.” Id. at 313. In Grosjean, we

conducted a review of precedent from other circuits, and

concluded that replacement by an employee who is within six

years of the plaintiff's age would be insufficient to establish

a prima facie case of age discrimination.

*4 Given this array of authority, and our circuit’s precedent,

we hold that, in the absence of direct evidence that the

employer considered age to be significant, an age difference

of six years or less between an employee and a replacement

is not significant.

34

Grosjean, 349 F.3d at 339. Bolander was initially replaced by

an employee 8 years his senior, and ultimately by an

employee 2 years his junior. Therefore, plaintiff cannot make

out a prima facie case under McDonnell Douglas.

[2] Bolander urges the court to modify the holding in

Grosjean to reflect that under unusual circumstances,

replacement by an insignificantly younger worker, or even an

older worker, is not inconsistent with age-based motivation.

For the reasons articulated in that case, we decline to do so.

Id. at 337-40. Grosjean provides, however, that direct

evidence may still be used to prove a case of discrimination

even in the absence of replacement by a substantially younger

worker. Id. at 340.

“Direct evidence” of discrimination is “that evidence which,

if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor in the

employer’s action.” Jacklyn v. Schering-Plough Health Care

Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999).

Allegedly discriminatory remarks made by somebody other

than the decisionmaker, or statements that are “unrelated to

the decisional process” at issue, do not constitute “direct

evidence.” Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th

Cir. 1998).

Bolander does not produce any evidence that Pat Gower

considered age to be a significant factor in making the

determination to terminate. Rather, Bolander presents

evidence that Clink and Panozzo made ageist comments and

35

were involved in the decisionmaking process. Panozzo

allegedly made the remark that he was looking for “young

energetic engineers” in connection with the filling of the Asset

Coordinator position in the summer of 2000, almost two years

before Bolander’s discharge. This comment lacks sufficient

connection to the discrimination alleged by Bolander to be

considered direct evidence. Id. The “old guard” references

were targeted at long-term employees who were resistant to

changes being implemented by BUL Johns in 2000 and 2001.

There is no evidence the term was used in connection with

Bolander’s discharge or that other members of this group

were terminated.

Bolander also submitted statistical evidence to support his

claim of age discrimination. A statistical analysis of demotions

and salary of Toledo refinery employees by age was

conducted by Dr. Malcolm S. Cohen, Ph.D. Dr. Cohen

compared employees under age 40 to those age 40 and over

with regard to demotions in 2000 and salary increases for

years 2000 and 2001. The report shows that in the year 2000,

25 of 129 employees over 40 were demoted as compared to

none of the 36 employees under age 40. Dr. Cohen found

there are only 3 chances out of 1000 that all 25 of the

demotions would be among persons over age 40.

*5 Personnel changes that occurred in 2000 would have been

under the previous BUL, Jeanne Johns, and not Pat Gower.

There is sufficient evidence to conclude that these statistics

reflect the T2K+ process in which most management

positions became open to a bidding process in 2000. A

reasonable explanation for why the younger employees were

not demoted is that they were largely limited to lower level

positions. Moreover, the evidence concerns the bid process of

2000, not the termination decision in 2002. For these reasons,

the affidavit from the statistician is not direct evidence of

discrimination against plaintiff in 2002.

Bolander also relies on the affidavit of Earl Gilbert and the

deposition of James Thomas, both of whom were plaintiff's

co-workers. They each testify to the effect that younger

people received promotions during the T2K + bidding process

in 2000. To consider this testimony relevant to Bolander’s

termination in 2002, however, one must make multiple

inferences and, therefore, the evidence cannot be considered

direct. See Manzer v. Diamond Shamrock Chems. Co., 29

F.3d 1078, 1081 (6th Cir.1994). As with the Statistical

evidence, this testimony bears only a strained relationship to

Bolander’s termination if at all. It deals with employment

decisions of a different caliber made by a different supervisor

two years before plaintiff was terminated.

Bolander lacks direct evidence of discrimination and

therefore must resort to the McDonnell Douglas approach to

state a prima facie case of discrimination. Bolander has not

shown that he was replaced by a significantly younger worker

where his replacement was only two years younger.

Therefore, Bolander’s attempt to show age-discrimination

under McDonnell Douglas fails.

Ill.

37

[3] Bolander argued before the district court that he was

entitled to have the evidence analyzed under the mixed-motive

burden-shifting method articulated in Price Waterhouse v.

Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268

(1989), and modified by Desert Palace, Inc. v. Costa, 539

U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). If Desert

Palace applies to age discrimination cases, a plaintiff could

State a prima facie case by using circumstantial evidence to

show that he was terminated at least in part due to his age.

See 539 U.S. at 101. In this case, however, there is not

enough evidence, direct or indirect, that age was “a

motivating factor” for Bolander’s termination. Ibid. (quoting

42 U.S.C. § 2000e-2(m)).

First, there is strong evidence that safety was of paramount

importance, especially after Pat Gower took over as BUL in

November, 2001. BP’s policy requiring use of the buddy

system was an important part of the confined space safety

policy, of which Bolander was aware. Bolander’s alleged

violation of the confined space policy was witnessed by a

group of independent contractors, who raised the violation to

their safety director, who also witnessed the violation. During

BP’s investigation, Bolander admitted to committing the

violation. Finally, Bolander received a safety violation

warning in the past, and was on notice of how BP would

respond to any future violations.

*6 As is more fully articulated in the proceeding section,

there is little evidence that age played a role in the decision to

terminate Bolander. Panozzo’s alleged ageist comments had

no connection to Bolander’s termination. Gower was

approximately the same age as Bolander and he is not accused

of making any ageist remarks or having any age-based animus

toward Bolander. Plaintiff's statistics, affidavit, and

deposition evidence concern another set of employment

decisions made by a different supervisor two years before

plaintiff was terminated. The same can be said about

plaintiff's third-party affidavit and deposition testimony.

There is no evidence to create an issue of fact whether age

was a motivating factor in BP’s decision to terminate

Bolander. This is not a mixed-motives case; therefore the

applicability of Desert Palace is not an issue and we do not

reach it.

IV.

[4] Bolander’s fourth assignment of error deals with the

district court’s dismissal of his retaliation claim. Bolander

filed a charge of discrimination with the Ohio Civil Rights

Commission in December 2000. The charge was dismissed 12

months later, with the OCRC finding no probable cause to

believe there was any discrimination based on age. Bolander

alleges in his complaint he was discharged in April 2002 in

retaliation for the filing of the OCRC charge in 2000.

A prima facie case for retaliation requires a showing that: (1)

the plaintiff engaged in activity protected by Title VII or the

state civil rights act; (2) the exercise of protected rights was

known to the defendant; (3) the defendant thereafter took

adverse employment action against the plaintiff; and (4) there

was a Causal connection between the protected activity and the

39

adverse employment action. Morris v. Oldham County Fiscal

Court, 201 F.3d 784, 792 (6th Cir.2000).

It is the fourth element, requiring a causal connection

between Bolander’s filing of the OCRC charge and his

discharge, that is at issue in this appeal. Seventeen months

passed between the two events in this case, and the district

court held that a “seventeen month hiatus between the filing

of the charge and plaintiff's firing is to[o] long to raise an

inference of retaliatory animus.” The district court cited to

this court’s case of Cooper v. City of North Olmsted, 795

F.2d 1265, 1272 (6th Cir.1986) (four-month interval

insufficient to support inference of retaliatory motive).

In order to prove his claim, Bolander was required to

produce some additional evidence to demonstrate a causal

connection between the protected activity and adverse

employment action. Bolander argues that he was unfairly

singled out for the safety violation, when the alleged safety

violation was conduct routinely taken by other similarly

situated persons, and was arguably not a safety violation at

all. BP points out that the April 1 safety violation was brought

to its attention by the safety manager of another company. In

addition, Bolander had already received a written warning for

placing his judgment above the requirements of safety

policies, a warning that preceded the filing of the OCRC

charge.

*7 The passage of 17 months between the filing of the OCRC

charge and Bolander’s termination does not allow any

40

inference of causal connection, and Bolander has produced no

evidence of any connection between the protected activity and

the termination of employment. The district court did not err

in granting summary judgment to BP Oil on Bolander’s

retaliation claim.

V.

[5] Bolander contends that the district court improperly

dismissed his intentional infliction of emotional distress claim.

Under Ohio law, a plaintiff must demonstrate that: (1) the

defendant intended to cause emotional distress, or knew or

should have known that his conduct would result in serious

emotional distress to the plaintiff; (2) the defendant’s conduct

was outrageous and extreme beyond all bounds of decency

and subsequently can be characterized as utterly intolerable in

a civilized community; (3) the defendant’s conduct was the

proximate cause of plaintiff's psychic injuries; and (4) the

plaintiff's emotional distress was serious, and of such a nature

that no reasonable person could be expected to endure it.

Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d

557, 561, 698 N.E.2d 503 (Ohio Ct.App. 1997); see generally

Yaeger v. Local Union 20, 6 Ohio St.3d 369, 375, 453

N.E.2d 666 (1983). “To say that Ohio courts narrowly define

‘extreme and outrageous conduct’ would be something of an

understatement.” Baab v. AMR Services Corp., 811 F Supp.

1246, 1269 (N.D.Ohio 1993).

This court has held that “an employee’s termination, even if

based upon discrimination, does not rise to the level of

‘extreme and outrageous conduct’ without proof of something

41

more. If such were not true, then every discrimination claim

would simultaneously be a cause of action for intentional

infliction of emotional distress.” Godfredson v. Hess &

Clark, Inc., 173 F.3d 365, 376 (6th Cir.1999). In this case

there is no evidence of outrageous conduct on the part of

defendant. The district court properly dismissed this claim.

For these reasons, we AFFIRM the judgment of the district

court.

FN1. The Honorable George Caram Steeh, United States

District Court for the Eastern District of Michigan, sitting by

designation.

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