Barker v. Scovill, Inc., Schrader Bellows Div.

• Decision Date: 03 August 1983
• Docket Number: No. 82-1150,82-1150
• Court: Ohio Supreme Court
• Parties: , 40 Fair Empl.Prac.Cas. (BNA) 1409, 6 O.B.R. 202 BARKER, Appellant, v. SCOVILL, INC., SCHRADER BELLOWS DIVISION, Appellee.

Page 146

6 Ohio St.3d 146

451 N.E.2d 807, 40 Fair Empl.Prac.Cas. (BNA) 1409, 6 O.B.R. 202

BARKER, Appellant, v. SCOVILL, INC., SCHRADER BELLOWS DIVISION, Appellee.

No. 82-1150.

Supreme Court of Ohio.

Aug. 3, 1983.

Syllabus by the Court

1. 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. Within the context of R.C. 4101.17, "just cause" for discharge is established if plaintiff was terminated for reasons other than those explicitly prohibited by the statute.

At the time her position was abolished, appellant, Jean C. Barker, then forty-nine years of age, was an administrative secretary in the International Marketing Division of appellee Scovill, Inc. Appellant had been in appellee's employ continuously for fifteen years, held--on the bases of salary and job responsibilities--the second highest-ranking secretarial position in the company and had, only weeks earlier, received a merit raise.

In 1980, as a result of a severe business downturn, appellee was forced first to lay off a number of employees and then to effect a twenty-five percent across-the-board reduction in company expenditures. In appellant's division, a twenty year old secretary was the first to be discharged. When further curtailment of the International Marketing staff became necessary Warren F. Eck, appellant's supervisor, decided, after reviewing division personnel requirements, to terminate appellant's employ.

Subsequently, William J. Beiling, appellee's manager of employee relations, offered appellant three options: (1) layoff with scant possibility of recall; (2) termination with severance pay of $4,736; or (3) transfer to a different plant at a monthly salary reduction of approximately two hundred dollars. Appellant chose termination with severance pay. No new employee was hired to replace appellant. Rather, her duties were assumed by several people, primarily by Kathy Easterling, a then twenty-two year old secretary.

Thereafter, appellant filed suit against appellee, alleging that she had been discharged on the basis of her age in contravention of R.C. 4101.17. The trial court found in favor of appellant. Upon appeal, however, the trial court's judgment was reversed, the reviewing court holding that appellant had been discharged for a nondiscriminatory reason, economic necessity.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Roderick, Myers & Linton and Deborah L. Cook, Akron, for appellant.

Squire, Sanders & Dempsey, Timothy J. Sheeran and L. Lee Boatright, Cleveland, for appellee.

LOCHER, Justice.

The sole issue presented in this case at bar is whether appellee, in allegedly discharging appellant from her employment, violated R.C. 4101.17 which, in essence, prohibits age-motivated hirings and firings. ¹ Finding the subject termination not to have been based on a violation of the statute, we affirm the appellate court's decision.

The instant action is one wherein the controversy is over ends, not means. Neither party disputes the fact that the analytical framework for determining the legality of appellee's action has been properly set forth in Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192 421 N.E.2d 128. This court in Plumbers, a case involving averments of racially discriminatory employment practices in contravention of R.C. 4112.02(A), ² itself adopted the evidentiary standards and guidelines which the United States Supreme Court enunciated in McDonnell Douglas v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.

As modified to fit a claim of age-based wrongful discharge, Plumbers and McDonnell Douglas require first that the plaintiff establish a prima facie violation of R.C. 4101.17, by showing (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 his discharge permitted the retention of, a person who did not belong to the protected class. See Ackerman v. Diamond Shamrock Corp. (C.A.6, 1982), 670 F.2d 66, 69; Marshall v. Goodyear Tire & Rubber Co. (C.A. 5, 1977), 554 F.2d 730, 735-736.

In order to avoid an adverse finding, the employer-defendant must then, under the second step of the Plumbers and McDonnell Douglas analysis, provide a legitimate, nondiscriminatory reason for plaintiff's discharge. Finally, if defendant does advance permissible grounds for the dismissal, plaintiff must counter and prove by a preponderance of the evidence that the reasons which defendant articulated for the firing were merely a pretext for unlawful discrimination. Plumbers, supra; McDonnell Douglas, supra; Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207. Thus, a failure either to set forth facts which constitute a prima facie case of employment discrimination or to issue the requisite evidentiary rejoinder to the asserted lawful basis for the subject discharge mandates the dismissal of an R.C. 4101.17 action. In the case at bar, appellant has failed in both respects.

First, appellant did not establish a prima facie case of age discrimination as she failed to prove that she had been discharged. It is uncontroverted that appellant was offered three options vis-a-vis her employment status and that she voluntarily chose to be terminated with severance pay. In Ackerman v. Diamond Shamrock Corp., supra, the Sixth Circuit Court of Appeals found that a fifty-nine year old plaintiff who opted for retirement with enhanced benefits rather than dismissal had not been discharged within the context of the Age Discrimination in Employment Act, Sections 621 et seq., Title 29, U.S.Code. ³ Clearly, the instant action presents an even more compelling case for finding that no discharge occurred as appellant herein was not only offered both termination with severance pay and layoff options, but was also given the opportunity to transfer to another plant. Indeed, appellant confessed that her refusal to accept the transfer was not based on the inherent undesirability of the offered employ; it was predicated on her belief that she "* * * could duplicate * * * [her] salary some place else." Appellant made a conscious, well-informed, uncoerced decision. She should not now be allowed to cry foul.

Even assuming arguendo that appellant did state a prima facie case of age discrimination in her alleged discharge, she still failed to disprove the authenticity of appellee's assertion that she was dismissed for a legitimate reason, i.e., business necessity. In applying Section 623(a), Title 29, U.S.Code, the federal counterpart to R.C. 4101.17, courts have held on numerous occasions that economic distress is a permissible basis for discharging employees, regardless of their age, as long as such discharges are implemented in a nondiscriminatory fashion. Sahadi v. Reynolds Chemical (C.A.6, 1980), 636 F.2d 1116; see Williams v. General Motors Corp. (C.A. 5, 1981), 656 F.2d 120. Although business necessity clearly constitutes a legally cognizable premise for discharge, appellant contends that such compulsion was, in fact, lacking in the case sub judice and has merely been asserted to camouflage an unlawful termination.

In McDonnell Douglas, supra, 411 U.S., at 804-805, 93 S.Ct., at 1825-1826, a case involving analogous allegations of racial discrimination, the United States Supreme Court stated:

"* * * evidence that may be relevant to any showing of pretext includes facts as to the petitioner's treatment of respondent during his prior term of employment * * * and petitioner's...