Scott v. Goodyear Tire & Rubber Co.

• Decision Date: 11 January 1999
• Docket Number: No. 96-3829,96-3829
• Citation: 160 F.3d 1121
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 705, 74 Empl. Prac. Dec. P 45,663, 22 Employee Benefits Cas. 2041 Albert J. SCOTT, Plaintiff-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1121

160 F.3d 1121

78 Fair Empl.Prac.Cas. (BNA) 705,

74 Empl. Prac. Dec. P 45,663,

22 Employee Benefits Cas. 2041

Albert J. SCOTT, Plaintiff-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee.

No. 96-3829.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 10, 1997.

Decided Nov. 20, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 11, 1999. ^*

Joseph W. Diemert, Jr. (argued), Laura J. Gentilcore (briefed), Joseph W. Diemert, Jr. & Associates, Cleveland, Ohio, for Plaintiff-Appellant. David L. Drechsler (argued and briefed), Mark J. Skakun (briefed), Buckingham, Doolittle & Burroughs, Akron, Ohio, for Defendant-Appellee.

Before: MERRITT, JONES, and NORRIS, Circuit Judges.

NATHANIEL R. JONES, J., delivered the opinion of the court, in which MERRITT, J., joined. ALAN E. NORRIS, J. (pp. 1130-1131), delivered a separate dissenting opinion.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Plaintiff Albert J. Scott appeals the grant of summary judgment in favor of Defendant Goodyear Tire and Rubber Company ("Goodyear") in this age discrimination case brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. and Ohio's counterpart statute. ¹ Specifically, Scott contends that Goodyear constructively discharged him when it eliminated his position following company restructuring and offered him early retirement instead of redeployment ² to a comparable position within the company. Upon consideration of the record and applicable law, we REVERSE the grant of summary judgment and REMAND for proceedings consistent with this opinion.

I.

Albert Scott began his employment with Goodyear on June 6, 1952 and continued working for the company until December 1993--the date of his decision to retire. During his 41 years of uninterrupted service to Goodyear, Scott held many positions including stockman, gas man, general service man, delivery and sales person of Tires, Batteries and Accessories, credit sales manager, store manager, retail store operations representative, division inventory coordinator and, finally, Operations Manager. Scott received satisfactory reviews throughout his employment with Goodyear.

In his final position as Operations Manager, Scott bore responsibility for administering, implementing, and coordinating policy and procedures dictated by the company to its eastern region district managers and retail stores. Although Goodyear centered its operations managers within its headquarters in Akron, Ohio, Scott's duties sometimes required him to travel to store locations to handle administrative matters directly with store managers.

In May of 1993, Goodyear began a comprehensive restructuring of its upper-level management structure, which resulted in the elimination of the five Operations Manager positions maintained by the company, including the position held by Scott. ³ The other four positions were held by John Cox (63 years old), Rodney Gwinn (51 years old), Greg Wahrle (35 years old) and Shayon Smith (32 years old). Scott, who was 61 years old when his position was eliminated, was told that he had not been redeployed because others could better meet the experience, skill, educational and other characteristic needs of the company. Redeployed employees, as Gordon Hewitt, a Goodyear executive described it, would need, among other things, a "high energy level."

With the elimination of the operations manager position, Goodyear created the new position of Retail Administrator. Where, according to Goodyear management, the former position had fed the "heavily paperwork oriented system" and bred "inefficiency between Akron and the regions" (J.A. at 941-42), Goodyear intended the new position to help improve management efficiency and customer relations. Under the new structure, the retail administrator position demanded a familiarity with computer technology, as the prevailing paper-based data recording system had become a major source of inefficiency.

Sometime around early December 1993, Ken Gable and Rob Morris, both subordinates of Goodyear's Manager of Human Resources Paul Evert, were instructed by Evert to travel to Cleveland, Ohio and inform Scott that his position had been eliminated. Evert also requested that Gable cover the options available to Scott in the wake of his job loss. According to Gable's deposition testimony, he inquired into the decision to eliminate Scott's position, but was "advised that the decision had been made and that [informing Scott of the elimination and decision not to redeploy him] was [his] assignment and that [Evert] was not going to discuss how the decision was arrived at [sic]." J.A. at 496-97. With Evert having closed off that discussion, Gable and Morris traveled to Cleveland the next day, and informed Scott that his job had been eliminated. Scott questioned Gable about the reasons for the decision, and Gable responded that he was not in a position to tell him because he did not know.

Gable then presented Scott with three options in lieu of continuing on as an operations manager. First, Scott could accept layoff status and receive no benefits at all and no possibility of recall. Second, Scott could accept layoff status, receive supplemental unemployment compensation benefits on a regular basis and remain under consideration for recall to a new position, if such a position became available at a later date. ⁴ Finally, Scott could opt for retirement and receive a lump sum payment of $114,500.86, as well as monthly retirement checks and continued health benefits into retirement. Scott ultimately chose retirement.

As it turns out, some of the other former operations managers were retained and redeployed within the company. Shayon Smith was redeployed into a newly created retail administrator position based on his ability to "look at the overall process and then to get other people to cooperate with him that were not his peers" and his electronics background (J.A. at 677-78), as was Greg Wahrle, because his "programming skills" and his "team player" approach were highly rated among executives. J.A. at 662, 677. Rodney Gwinn accepted a district manager position in Phoenix. Goodyear officials stated in deposition testimony that Gwinn's previous experience as a district manager made him a natural fit for the Phoenix position. J.A. at 676, 991. Thus, of the five former operations managers, only Scott and John Cox, the two oldest managers, were not offered definite redeployment opportunities within the company. ⁵

After his retirement, Scott brought this age discrimination action under the ADEA and a corresponding Ohio anti-discrimination statute on May 12, 1995, alleging that Goodyear's decision to eliminate his position was impermissibly motivated by age considerations. During the subsequent discovery phase, Scott compiled a number of suspicious facts. First, as noted above, he uncovered the irregular manner with which the decision to eliminate his position was handled. According to the undisputed deposition testimony of Evert and Gable, the latter was instructed to inform Scott of the elimination of his operations manager position without asking further questions. Consequently, Gable entered the discussion with Scott unable to answer questions about why the company had decided not to redeploy him. According to Gable, this occurrence deviated from normal practice, since he, as human resources representative, was generally given latitude to inquire into the basis for a given employment decision and to assess for the adversely-treated worker his or her prospects for future employment with the company. On occasion, in fact, Gable was given permission to find other employment within the company for a dismissed employee.

In addition to the unusually vague response given to Scott, various statements of two of the three managers responsible for the decision to eliminate Scott's position indicated age bias. According to Edward Ercegovich, ⁶ a Goodyear employee at the time of the reorganization, Ed Gallagher, who was then Vice President of the Retail Sales Division, made statements in 1993 such as "this company is run by white haired old men, waiting to retire" and "this must change." Ercegovich similarly attested that he heard Hewitt state in August 1995 in reference to Goodyear's upcoming Budget planning: "Some people will lose their jobs, but in time, we will replace them with young college graduates at less money." ⁷ Further, Scott presented deposition testimony from two of the three redeployed operations managers, Shayon Smith and Greg Wahrle, indicating that they had not been told that they were being laid off. J.A. at 440, 1037-38. Finally, Scott presented statistical evidence showing the average age of eliminated employees at 47.35 years old and that of non-eliminated employees at 40.47 years old. In reviewing these statistical findings, Drs. Harvey Rosen and John Burke, both economists, performed a chi-square test ⁸ to determine whether the age of an employee was a non-factor in determining whether his or her position was eliminated. After conducting further statistical analysis using a chi-square testing model, the economists concluded that the "data marginally fail to reject the null hypothesis that employee age is insignificant in explaining whether or not an employee's position was eliminated." J.A. at 184.

Prior to trial, however, Goodyear submitted a summary judgment motion on May 3, 1996, which the district court granted. Inexplicably, in the face of the economist's conclusions, the district court stated that no evidence supported Scott's contention that Goodyear managers forced him into retirement due to his age and thereby created an actionable instance of discrimination. Further, the district concluded that, even if Scott had raised a genuine factual question regarding a constructive discharge theory, he failed to provide additional evidence to support an inference that age-related bias...